Evangelical Views - the Best of UseNet Religious Postings! :: View topic - First Amendment: Jaffrey vs. Wallace. Part One

John 14 15-21 · Guest

This the dissenting opinion of United States Supreme Court Justice J.
Rehnquist in Jaffrey vs. Wallace.

What makes this legal opinion so compelling is that it goes deep into the
history of the Establishment Clause/ Free Exercise Clause. It shows how the
orginal intent has been completely lost. It's extremely relevant to the Ten
Commandments case of Alabama Chief Justice Roy Moore in terms of the display of
the Ten Commandments in the judicial building.

The history of First Admendment as well as it's drafting is extremely
interesting.

------------------------------
For the most part agreeing with the opinion of THE CHIEF JUSTICE, I dissent
from the Court's judgment invalidating Ala.Code § 16-1-20.1 (Supp.1984).
Because I do, it is apparent that in my view the First Amendment does not
proscribe either (1) statutes authorizing or requiring in so many words a
moment of silence before classes begin or (2) a statute that provides, when it
is initially passed, for a moment of silence for meditation or prayer. As I
read the filed opinions, [p*91] a majority of the Court would approve statutes
that provided for a moment of silence but did not mention prayer. But if a
student asked whether he could pray during that moment, it is difficult to
believe that the teacher could not answer in the affirmative. If that is the
case, I would not invalidate a statute that at the outset provided the
legislative answer to the question "May I pray?" This is so even if the Alabama
statute is infirm, which I do not believe it is, because of its peculiar
legislative history.

I appreciate JUSTICE REHNQUIST's explication of the history of the Religion
Clauses of the First Amendment. Against that history, it would be quite
understandable if we undertook to reassess our cases dealing with these
Clauses, particularly those dealing with the Establishment Clause. Of course, I
have been out of step with many of the Court's decisions dealing with this
subject matter, and it is thus not surprising that I would support a basic
reconsideration of our precedents.

REHNQUIST, J., Dissenting Opinion

JUSTICE REHNQUIST, dissenting.

Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U.S.
1 , 16 (1947), summarized its exegesis of Establishment Clause doctrine thus:

In the words of Jefferson, the clause against establishment of religion by law
was intended to erect "a wall of separation between church and State." Reynolds
v. United States, [98 U.S. 145, 164 (1879)].

This language from Reynolds, a case involving the Free Exercise Clause of the
First Amendment, rather than the Establishment Clause, quoted from Thomas
Jefferson's letter to the Danbury Baptist Association the phrase

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 [p*92] between church and State.

8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861). [n1]

It is impossible to build sound constitutional doctrine upon a mistaken
understanding of constitutional history, but unfortunately the Establishment
Clause has been expressly freighted with Jefferson's misleading metaphor for
nearly 40 years. Thomas Jefferson was, of course, in France at the time the
constitutional Amendments known as the Bill of Rights were passed by Congress
and ratified by the States. His letter to the Danbury Baptist Association was a
short note of courtesy, written 14 years after the Amendments were passed by
Congress. He would seem to any detached observer as a less than ideal source of
contemporary history as to the meaning of the Religion Clauses of the First
Amendment.

Jefferson's fellow Virginian, James Madison, with whom he was joined in the
battle for the enactment of the Virginia Statute of Religious Liberty of 1786,
did play as large a part as anyone in the drafting of the Bill of Rights. He
had two advantages over Jefferson in this regard: he was present in the United
States, and he was a leading Member of the First Congress. But when we turn to
the record of the proceedings in the First Congress leading up to the adoption
of the Establishment Clause of the Constitution, including Madison's
significant contributions thereto, we see a far different picture of its
purpose than the highly simplified "wall of separation between church and
State."

During the debates in the Thirteen Colonies over ratification of the
Constitution, one of the arguments frequently used by opponents of ratification
was that, without a Bill of Rights guaranteeing individual liberty, the new
general Government [p*93] carried with it a potential for tyranny. The typical
response to this argument on the part of those who favored ratification was
that the general Government established by the Constitution had only delegated
powers, and that these delegated powers were so limited that the Government
would have no occasion to violate individual liberties. This response satisfied
some, but not others, and of the 11 Colonies which ratified the Constitution by
early 1789, 5 proposed one or another amendments guaranteeing individual
liberty. Three -- New Hampshire, New York, and Virginia -- included in one form
or another a declaration of religious freedom. See 3 J. Elliot, Debates on the
Federal Constitution 659 (1891); 1 id. at 328. Rhode Island and North Carolina
flatly refused to ratify the Constitution in the absence of amendments in the
nature of a Bill of Rights. 1 id. at 334; 4 id. at 244. Virginia and North
Carolina proposed identical guarantees of religious freedom:

[A]ll men have an equal, natural and unalienable right to the free exercise of
religion, according to the dictates of conscience, and . . . no particular
religious sect or society ought to be favored or established, by law, in
preference to others.

3 id. at 659; 4 id. at 244. [n2]

On June 8, 1789, James Madison rose in the House of Representatives and
"reminded the House that this was the day that he had heretofore named for
bringing forward amendments to the Constitution." 1 Annals of Cong. 424.
Madison's subsequent remarks in urging the House to adopt his drafts of the
proposed amendments were less those of a dedicated advocate of the wisdom of
such measures than those of a prudent statesman seeking the enactment of
measures [p*94] sought by a number of his fellow citizens which could surely do
no harm, and might do a great deal of good. He said, inter alia:

It appears to me that this House is bound by every motive of prudence, not to
let the first session pass over without proposing to the State Legislatures,
some things to be incorporated into the Constitution, that will render it as
acceptable to the whole people of the United States, as it has been found
acceptable to a majority of them. I wish, among other reasons why something
should be done, that those who had been friendly to the adoption of this
Constitution may have the opportunity of proving to those who were opposed to
it that they were as sincerely devoted to liberty and a Republican Government,
as those who charged them with wishing the adoption of this Constitution in
order to lay the foundation of an aristocracy or despotism. It will be a
desirable thing to extinguish from the bosom of every member of the community,
any apprehensions that there are those among his countrymen who wish to deprive
them of the liberty for which they valiantly fought and honorably bled. And if
there are amendments desired of such a nature as will not injure the
Constitution, and they can be ingrafted so as to give satisfaction to the
doubting part of our fellow-citizens, the friends of the Federal Government
will evince that spirit of deference and concession for which they have
hitherto been distinguished.

Id. at 431-432.

The language Madison proposed for what ultimately became the Religion Clauses
of the First Amendment was this:

The civil rights of none shall be abridged on account of religious belief or
worship, nor shall any national religion be established, nor shall the full and
equal rights of conscience be in any manner, or on any pretext, infringed.

Id. at 434. [p*95]

On the same day that Madison proposed them, the amendments which formed the
basis for the Bill of Rights were referred by the House to a Committee of the
Whole, and after several weeks' delay, were then referred to a Select Committee
consisting of Madison and 10 others. The Committee revised Madison's proposal
regarding the establishment of religion to read:

[N]o religion shall be established by law, nor shall the equal rights of
conscience be infringed.

Id. at 729.

The Committee's proposed revisions were debated in the House on August 15,
1789. The entire debate on the Religion Clauses is contained in two full
columns of the "Annals," and does not seem particularly illuminating. See id.
at 729-731. Representative Peter Sylvester of New York expressed his dislike
for the revised version, because it might have a tendency "to abolish religion
altogether." Representative John Vining suggested that the two parts of the
sentence be transposed; Representative Elbridge Gerry thought the language
should be changed to read "that no religious doctrine shall be established by
law." Id. at 729. Roger Sherman of Connecticut had the traditional reason for
opposing provisions of a Bill of Rights -- that Congress had no delegated
authority to "make religious establishments" -- and therefore he opposed the
adoption of the amendment. Representative Daniel Carroll of Maryland thought it
desirable to adopt the words proposed, saying

[h]e would not contend with gentlemen about the phraseology, his object was to
secure the substance in such a manner as to satisfy the wishes of the honest
part of the community.

Madison then spoke, and said that

he apprehended the meaning of the words to be, that Congress should not
establish a religion, and enforce the legal observation of it by law, nor
compel men to worship God in any manner contrary to their conscience.

Id. at 730. He said that some of the state conventions had thought that
Congress might rely on [p*96] the Necessary and Proper Clause to infringe the
rights of conscience or to establish a national religion, and

to prevent these effects he presumed the amendment was intended, and he
thought it as well expressed as the nature of the language would admit.

Ibid.

Representative Benjamin Huntington then expressed the view that the
Committee's language might

be taken in such latitude as to be extremely hurtful to the cause of religion.
He understood the amendment to mean what had been expressed by the gentleman
from Virginia; but others might find it convenient to put another construction
upon it.

Huntington, from Connecticut, was concerned that in the New England States,
where state-established religions were the rule, rather than the exception, the
federal courts might not be able to entertain claims based upon an obligation
under the bylaws of a religious organization to contribute to the support of a
minister or the building of a place of worship. He hoped that

the amendment would be made in such a way as to secure the rights of
conscience, and a free exercise of the rights of religion, but not to patronise
those who professed no religion at all.

Id. at 730-731.

Madison responded that the insertion of the word "national" before the word
"religion" in the Committee version should satisfy the minds of those who had
criticized the language.

He believed that the people feared one sect might obtain a preeminence, or two
combine together, and establish a religion to which they would compel others to
conform. He thought that, if the word "national" was introduced, it would point
the amendment directly to the object it was intended to prevent.

Id. at 731. Representative Samuel Livermore expressed himself as dissatisfied
with Madison's proposed amendment, and thought it would be better if the
Committee language were altered to read that "Congress shall make no laws
touching religion, or infringing the rights of conscience." Ibid.

Representative Gerry spoke in opposition to the use of the word "national"
because of strong feelings expressed during [p*97] the ratification debates
that a federal government, not a national government, was created by the
Constitution. Madison thereby withdrew his proposal, but insisted that his
reference to a "national religion" only referred to a national establishment,
and did not mean that the Government was a national one. The question was taken
on Representative Livermore's motion, which passed by a vote of 31 for and 20
against. Ibid.

The following week, without any apparent debate, the House voted to alter the
language of the Religion Clauses to read

Congress shall make no law establishing religion, or to prevent the free
exercise thereof, or to infringe the rights of conscience. Id. at 766. The
floor debates in the Senate were secret, and therefore not reported in the
Annals. The Senate, on September 3, 1789, considered several different forms of
the Religion Amendment, and reported this language back to the House: Congress
shall make no law establishing articles of faith or a mode of worship, or
prohibiting the free exercise of religion. C. Antieau, A. Downey, & E. Roberts,
Freedom From Federal Establishment 130 (1964). The House refused to accept the
Senate's changes in the Bill of Rights, and asked for a conference; the version
which emerged from the conference was that which ultimately found its way into
the Constitution as a part of the First Amendment. Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof. The House and the Senate both accepted this language on successive
days, and the Amendment was proposed in this form. On the basis of the record
of these proceedings in the House of Representatives, James Madison was
undoubtedly the most important architect among the Members of the [p*98] House
of the Amendments which became the Bill of Rights, but it was James Madison
speaking as an advocate of sensible legislative compromise, not as an advocate
of incorporating the Virginia Statute of Religious Liberty into the United
States Constitution. During the ratification debate in the Virginia Convention,
Madison had actually opposed the idea of any Bill of Rights. His sponsorship of
the Amendments in the House was obviously not that of a zealous believer in the
necessity of the Religion Clauses, but of one who felt it might do some good,
could do no harm, and would satisfy those who had ratified the Constitution on
the condition that Congress propose a Bill of Rights. [n3] His original
language "nor shall any national religion be established" obviously does not
conform to the "wall of separation" between church and State idea which
latter-day commentators have ascribed to him. His explanation on the floor of
the meaning of his language -- "that Congress should not establish a religion,
and enforce the legal observation of it by law" -- is of the same ilk. When he
replied to Huntington in the debate over the proposal which came from the
Select Committee of the House, he urged that the language "no religion shall be
established by law" should be amended by inserting the word "national" in front
of the word "religion." It seems indisputable from these glimpses of Madison's
thinking, as reflected by actions on the floor of the House in 1789, that he
saw the Amendment as designed to prohibit the establishment of a national
religion, and perhaps to prevent discrimination among sects. He did not see it
as requiring neutrality on the part of government between religion and
irreligion. Thus the Court's opinion in Everson -- while correct in bracketing
Madison and Jefferson together in their exertions in their home State leading
to the enactment of the [p*99] Virginia Statute of Religious Liberty -- is
totally incorrect in suggesting that Madison carried these views onto the floor
of the United States House of Representatives when he proposed the language
which would ultimately become the Bill of Rights. The repetition of this error
in the Court's opinion in Illinois ex rel. McCollum v. Board of Education, 333
U.S. 203 (1948), and, inter alia, Engel v. Vitale, 370 U.S. 421 (1962), does
not make it any sounder historically. Finally, in Abington School District v.
Schempp, 374 U.S. 203 , 214 (1963), the Court made the truly remarkable
statement that the views of Madison and Jefferson, preceded by Roger Williams,
came to be incorporated not only in the Federal Constitution but likewise in
those of most of our States (footnote omitted). On the basis of what evidence
we have, this statement is demonstrably incorrect as a matter of history. [n4]
And its repetition in varying forms in succeeding opinions of the Court can
give it no more authority than it possesses as a matter of fact; stare decisis
may bind courts as to matters of law, but it cannot bind them as to matters of
history. None of the other Members of Congress who spoke during the August 15th
debate expressed the slightest indication that they thought the language before
them from the Select Committee, or the evil to be aimed at, would require that
the Government be absolutely neutral as between religion and irreligion. The
evil to be aimed at, so far as those who spoke were concerned, appears to have
been the establishment of a national church, and perhaps the preference of one
religious sect over another; but it was definitely not concerned about whether
the Government might aid all religions evenhandedly. If one were to follow the
advice of JUSTICE BRENNAN, concurring in Abington School District v. Schempp,
supra, at 236 , and construe the Amendment in the light of what particular
[p*100] practices . . . challenged threaten those consequences which the
Framers deeply feared; whether, in short, they tend to promote that type of
interdependence between religion and state which the First Amendment was
designed to prevent, one would have to say that the First Amendment
Establishment Clause should be read no more broadly than to prevent the
establishment of a national religion or the governmental preference of one
religious sect over another. The actions of the First Congress, which reenacted
the Northwest Ordinance for the governance of the Northwest Territory in 1789,
confirm the view that Congress did not mean that the Government should be
neutral between religion and irreligion. The House of Representatives took up
the Northwest Ordinance on the same day as Madison introduced his proposed
amendments which became the Bill of Rights; while at that time the Federal
Government was, of course, not bound by draft amendments to the Constitution
which had not yet been proposed by Congress, say nothing of ratified by the
States, it seems highly unlikely that the House of Representatives would
simultaneously consider proposed amendments to the Constitution and enact an
important piece of territorial legislation which conflicted with the intent of
those proposals. The Northwest Ordinance, 1 Stat. 50, reenacted the Northwest
Ordinance of 1787 and provided that [r]eligion, morality, and knowledge, being
necessary to good government and the happiness of mankind, schools and the
means of education shall forever be encouraged. Id. at 52, n. (a). Land grants
for schools in the Northwest Territory were not limited to public schools. It
was not until 1845 that Congress limited land grants in the new States and
Territories to nonsectarian schools. 5 Stat. 788; C. Antieau, A. Downey, & E.
Roberts, Freedom From Federal Establishment 163 (1964). On the day after the
House of Representatives voted to adopt the form of the First Amendment
Religion Clauses which was ultimately proposed and ratified, Representative
[p*101] Elias Boudinot proposed a resolution asking President George Washington
to issue a Thanksgiving Day Proclamation. Boudinot said he could not think of
letting the session pass over without offering an opportunity to all the
citizens of the United States of joining with one voice, in returning to
Almighty God their sincere thanks for the many blessings he had poured down
upon them.

1 Annals of Cong. 914 (1789). Representative Aedanas Burke objected to the
resolution because he did not like "this mimicking of European customs";
Representative Thomas Tucker objected that whether or not the people had reason
to be satisfied with the Constitution was something that the States knew better
than the Congress, and, in any event, "it is a religious matter, and, as such,
is proscribed to us." Id. at 915. Representative Sherman supported the
resolution "not only as a laudable one in itself, but as warranted by a number
of precedents in Holy Writ: for instance, the solemn thanksgivings and
rejoicings which took place in the time of Solomon, after the building of the
temple, was a case in point. This example, he thought, worthy of Christian
imitation on the present occasion. . . ." Ibid. Boudinot's resolution was
carried in the affirmative on September 25, 1789. Boudinot and Sherman, who
favored the Thanksgiving Proclamation, voted in favor of the adoption of the
proposed amendments to the Constitution, including the Religion Clauses;
Tucker, who opposed the Thanksgiving Proclamation, voted against the adoption
of the amendments which became the Bill of Rights. Within two weeks of this
action by the House, George Washington responded to the Joint Resolution which
by now had been changed to include the language that the President recommend to
the people of the United States a day of public thanksgiving and prayer, to be
observed by acknowledging with grateful hearts the many and signal favors of
Almighty God, especially by affording them an opportunity peaceably to
establish a form of government for their safety and happiness. 1 J. Richardson,
Messages and Papers of [p*102] the Presidents, 1789-1897, p. 64 (1897). The
Presidential Proclamation was couched in these words: Now, therefore, I do
recommend and assign Thursday, the 26th day of November next, to be devoted by
the people of these States to the service of that great and glorious Being who
is the beneficent author of all the good that was, that is, or that will be;
that we may then all unite in rendering unto Him our sincere and humble thanks
for His kind care and protection of the people of this country previous to
their becoming a nation; for the signal and manifold mercies and the favorable
interpositions of His providence in the course and conclusion of the late war;
for the great degree of tranquillity, union, and plenty which we have since
enjoyed; for the peaceable and rational manner in which we have been enabled to
establish constitutions of government for our safety and happiness, and
particularly the national one now lately instituted; for the civil and
religious liberty with which we are blessed, and the means we have of acquiring
and diffusing useful knowledge; and, in general, for all the great and various
favors which He has been pleased to confer upon us. And also that we may then
unite in most humbly offering our prayers and supplications to the great Lord
and Ruler of Nations, and beseech Him to pardon our national and other
transgressions; to enable us all, whether in public or private stations, to
perform our several and relative duties properly and punctually; to render our
National Government a blessing to all the people by constantly being a
Government of wise, just, and constitutional laws, discreetly and faithfully
executed and obeyed; to protect and guide all sovereigns and nations
(especially such as have shown kindness to us), and to bless them with good
governments, peace, and concord; to promote the knowledge and practice of true
religion and virtue, and the increase of science among them and [p*103] us;
and, generally, to grant unto all mankind such a degree of temporal prosperity
as He alone knows to be best. Ibid. George Washington, John Adams, and James
Madison all issued Thanksgiving Proclamations; Thomas Jefferson did not,
saying: Fasting and prayer are religious exercises; the enjoining them an act
of discipline. Every religious society has a right to determine for itself the
times for these exercises, and the objects proper for them, according to their
own particular tenets; and this right can never be safer than in their own
hands, where the Constitution has deposited it. 11 Writings of Thomas Jefferson
429 (A. Lipscomb ed.1904). As the United States moved from the 18th into the
19th century, Congress appropriated time and again public moneys in support of
sectarian Indian education carried on by religious organizations. Typical of
these was Jefferson's treaty with the Kaskaskia Indians, which provided annual
cash support for the Tribe's Roman Catholic priest and church. [n5] It was not
until 1897, when aid to sectarian education [p*104] for Indians had reached
$500,000 annually, that Congress decided thereafter to cease appropriating
money for education in sectarian schools. See Act of June 7, 1897, 30 Stat. 62,
79; cf. Quick Bear v. Leupp, 210 U.S. 50, 77-79 (1908); J. O'Neill, Religion
and Education Under the Constitution 118-119 (1949). See generally R. Cord,
Separation of Church and State 61-82 (1982). This history shows the fallacy of
the notion found in Everson that "no tax in any amount" may be levied for
religious activities in any form. 330 U.S. at 15-16. Joseph Story, a Member of
this Court from 1811 to 1845, and during much of that time a professor at the
Harvard Law School, published by far the most comprehensive treatise on the
United States Constitution that had then appeared. Volume 2 of Story's
Commentaries on the Constitution of the United States 630-632 (5th ed. 1891)
discussed the meaning of the Establishment Clause of the First Amendment this
way: Probably at the time of the adoption of the Constitution, and of the
amendment to it now under consideration [First Amendment], the general if not
the universal sentiment in America was that Christianity ought to receive
encouragement from the State so far as was not incompatible with the private
rights of conscience and the freedom of religious worship. An attempt to level
all religions, and to make it a matter of state policy to hold all in utter
indifference, would have created universal disapprobation, if not universal
indignation. * * * * The real object of the [First] [A]mendment was not to
countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by
prostrating Christianity, but to exclude all rivalry among Christian sects, and
to prevent [p*105] any national ecclesiastical establishment which should give
to a hierarchy the exclusive patronage of the national government. It thus cut
off the means of religious persecution (the vice and pest of former ages), and
of the subversion of the rights of conscience in matters of religion, which had
been trampled upon almost from the days of the Apostles to the present age. . .
.. (Footnotes omitted.) Thomas Cooley's eminence as a legal authority rivaled
that of Story. Cooley stated in his treatise entitled Constitutional
Limitations that aid to a particular religious sect was prohibited by the
United States Constitution, but he went on to say: But while thus careful to
establish, protect, and defend religious freedom and equality, the American
constitutions contain no provisions which prohibit the authorities from such
solemn recognition of a superintending Providence in public transactions and
exercises as the general religious sentiment of mankind inspires, and as seems
meet and proper in finite and dependent beings. Whatever may be the shades of
religious belief, all must acknowledge the fitness of recognizing in important
human affairs the superintending care and control of the Great Governor of the
Universe, and of acknowledging with thanksgiving his boundless favors, or
bowing in contrition when visited with the penalties of his broken laws. No
principle of constitutional law is violated when thanksgiving or fast days are
appointed; when chaplains are designated for the army and navy; when
legislative sessions are opened with prayer or the reading of the Scriptures,
or when religious teaching is encouraged by a general exemption of the houses
of religious worship from taxation for the support of State government.
Undoubtedly the spirit of the Constitution will require, in all these cases,
that care be taken to avoid discrimination [p*106] in favor of or against any
one religious denomination or sect; but the power to do any of these things
does not become unconstitutional simply because of its susceptibility to abuse.
.. . . Id. at *470-*471.( End of Part One--TheName888)
------------------------
Remember: Jesus is Lord!
Romans 10:9-10, John 14:15-21, Acts 2:38, Eph 2:7-10, Matthew 5:3-16, 1Cor 15,
John Chapter Three, Romans Chapter Eight, The Book of First John. :)

http://www.unshackled.org/ Old Time Radio Drama / Lives Changed by Christ

"The Gospel is about what God has done for us and what we
can become in Christ; it's about a relationship with Christ being
the answer to our deepest needs. The Good News offers lost people
what they are frantically searching for: forgiveness, freedom, security,
purpose, love, acceptance, and strength. It settles our past, assures
our future, and gives meaning to today. It is the best news in the WORLD."

-----Pastor Rick Warren

Page 224, The Purpose Driven Church, Copyright 1995, ISBN 0-310-20106-3

K-Love : Christian Music, News and Information.

http://klove.com/

"Reasons last step is the recognition that there is an infinite number of
things that go beyond it"---Blaise Pascal.

http://www.ankerberg.com/The-Gospel-of-Jesus-Christ.html

http://www2.gasou.edu/facstaff/etmcmull/FUCHIDA.htm

John 14 15-21 · Guest

Part Two of the Dissenting Opinion in Jaffrey vs. Wallace
------------------
Cooley added that

[t]his public recognition of religious worship, however, is not based
entirely, perhaps not even mainly, upon a sense of what is due to the Supreme
Being himself as the author of all good and of all law; but the same reasons of
state policy which induce the government to aid institutions of charity and
seminaries of instruction will incline it also to foster religious worship and
religious institutions, as conservators of the public morals and valuable, if
not indispensable, assistants to the preservation of the public order.

Id. at *470.

It would seem from this evidence that the Establishment Clause of the First
Amendment had acquired a well-accepted meaning: it forbade establishment of a
national religion, and forbade preference among religious sects or
denominations. Indeed, the first American dictionary defined the word
"establishment" as "the act of establishing, founding, ratifying or ordaining,"
such as in "[t]he episcopal form of religion, so called, in England." 1 N.
Webster, American Dictionary of the English Language (1st ed. 1828). The
Establishment Clause did not require government neutrality between religion and
irreligion, nor did it prohibit the Federal Government from providing
nondiscriminatory aid to religion. There is simply no historical foundation for
the proposition that the Framers intended to build the "wall of separation"
that was constitutionalized in Everson.

Notwithstanding the absence of a historical basis for this theory of rigid
separation, the wall idea might well have served as a useful, albeit misguided,
analytical concept, had it led this Court to unified and principled results in
Establishment Clause cases. The opposite, unfortunately, has been [p*107] true;
in the 38 years since Everson, our Establishment Clause cases have been neither
principled nor unified. Our recent opinions, many of them hopelessly divided
pluralities, [n6] have with embarrassing candor conceded that the "wall of
separation" is merely a "blurred, indistinct, and variable barrier," which "is
not wholly accurate" and can only be "dimly perceived." Lemon v. Kurtzman, 403
U.S. 602 , 614 (1971); Tilton v. Richardson, 403 U.S. 672, 677-678, (1971);
Wolman v. Walter, 433 U.S. 229, 236 (1977); Lynch v. Donnelly, 465 U.S. 668 ,
673 (1984).

Whether due to its lack of historical support or its practical unworkability,
the Everson "wall" has proved all but useless as a guide to sound
constitutional adjudication. It illustrates only too well the wisdom of
Benjamin Cardozo's observation that "[m]etaphors in law are to be narrowly
watched, for starting as devices to liberate thought, they end often by
enslaving it." Berkey v. Third Avenue R. Co., 244 N.Y. 84, 94, 155 N.E. 58, 61
(1926).

But the greatest injury of the "wall" notion is its mischievous diversion of
judges from the actual intentions of the drafters of the Bill of Rights. The
"crucible of litigation," ante at 52 , is well adapted to adjudicating factual
disputes on the basis of testimony presented in court, but no amount of
repetition of historical errors in judicial opinions can make the errors true.
The "wall of separation between church and State" is a metaphor based on bad
history, a metaphor which has proved useless as a guide to judging. It should
be frankly and explicitly abandoned. [p*108]

The Court has more recently attempted to add some mortar to Everson's wall
through the three-part test of Lemon v. Kurtzman, supra, at 614-615 , which
served at first to offer a more useful test for purposes of the Establishment
Clause than did the "wall" metaphor. Generally stated, the Lemon test
proscribes state action that has a sectarian purpose or effect, or causes an
impermissible governmental entanglement with religion.

Lemon cited Board of Education v. Allen, 392 U.S. 236 , 243 (1968), as the
source of the "purpose" and "effect" prongs of the three-part test. The Allen
opinion explains, however, how it inherited the purpose and effect elements
from Schempp and Everson, both of which contain the historical errors described
above. See Allen, supra, at 243 . Thus the purpose and effect prongs have the
same historical deficiencies as the wall concept itself: they are in no way
based on either the language or intent of the drafters.

The secular purpose prong has proved mercurial in application because it has
never been fully defined, and we have never fully stated how the test is to
operate. If the purpose prong is intended to void those aids to sectarian
institutions accompanied by a stated legislative purpose to aid religion, the
prong will condemn nothing so long as the legislature utters a secular purpose
and says nothing about aiding religion. Thus, the constitutionality of a
statute may depend upon what the legislators put into the legislative history
and, more importantly, what they leave out. The purpose prong means little if
it only requires the legislature to express any secular purpose and omit all
sectarian references, because legislators might do just that. Faced with a
valid legislative secular purpose, we could not properly ignore that purpose
without a factual basis for doing so. Larson v. Valente, 456 U.S. 228, 262-263
(1982) (WHITE, J., dissenting).

However, if the purpose prong is aimed to void all statutes enacted with the
intent to aid sectarian institutions, whether stated or not, then most statutes
providing any aid, such as [p*109] textbooks or bus rides for sectarian school
children, will fail because one of the purposes behind every statute, whether
stated or not, is to aid the target of its largesse. In other words, if the
purpose prong requires an absence of any intent to aid sectarian institutions,
whether or not expressed, few state laws in this area could pass the test, and
we would be required to void some state aids to religion which we have already
upheld. E.g., Allen, supra.

The entanglement prong of the Lemon test came from Walz v. Tax Comm'n, 397
U.S. 664 , 674 (1970). Walz involved a constitutional challenge to New York's
time-honored practice of providing state property tax exemptions to church
property used in worship. The Walz opinion refused to "undermine the ultimate
constitutional objective [of the Establishment Clause] as illuminated by
history," id. at 671 , and upheld the tax exemption. The Court examined the
historical relationship between the State and church when church property was
in issue, and determined that the challenged tax exemption did not so entangle
New York with the church as to cause an intrusion or interference with
religion. Interferences with religion should arguably be dealt with under the
Free Exercise Clause, but the entanglement inquiry in Walz was consistent with
that case's broad survey of the relationship between state taxation and
religious property.

We have not always followed Walz' reflective inquiry into entanglement,
however. E.g., Wolman, supra, at 254. One of the difficulties with the
entanglement prong is that, when divorced from the logic of Walz, it creates an
"insoluble paradox" in school aid cases: we have required aid to parochial
schools to be closely watched lest it be put to sectarian use, yet this close
supervision itself will create an entanglement. Roemer v. Maryland Bd. of
Public Works, 426 U.S. 736, 768-769 (1976) (WHITE, J., concurring in judgment).
For example, in Wolman, supra, the Court in part struck the State's
nondiscriminatory provision of buses for parochial school field trips, because
the state supervision [p*110] of sectarian officials in charge of field trips
would be too onerous. This type of self-defeating result is certainly not
required to ensure that States do not establish religions.

The entanglement test as applied in cases like Wolman also ignores the myriad
state administrative regulations properly placed upon sectarian institutions
such as curriculum, attendance, and certification requirements for sectarian
schools, or fire and safety regulations for churches. Avoiding entanglement
between church and State may be an important consideration in a case like Walz,
but if the entanglement prong were applied to all state and church relations in
the automatic manner in which it has been applied to school aid cases, the
State could hardly require anything of church-related institutions as a
condition for receipt of financial assistance.

These difficulties arise because the Lemon test has no more grounding in the
history of the First Amendment than does the wall theory upon which it rests.
The three-part test represents a determined effort to craft a workable rule
from a historically faulty doctrine; but the rule can only be as sound as the
doctrine it attempts to service. The three-part test has simply not provided
adequate standards for deciding Establishment Clause cases, as this Court has
slowly come to realize. Even worse, the Lemon test has caused this Court to
fracture into unworkable plurality opinions, see n. 6 , supra, depending upon
how each of the three factors applies to a certain state action. The results
from our school services cases show the difficulty we have encountered in
making the Lemon test yield principled results.

For example, a State may lend to parochial school children geography textbooks
[n7] that contain maps of the United States, but the State may not lend maps of
the United States for use in geography class. [n8] A State may lend textbooks
on American colonial history, but it may not lend a film on [p*111] George
Washington, or a film projector to show it in history class. A State may lend
classroom workbooks, but may not lend workbooks in which the parochial school
children write, thus rendering them nonreusable. [n9] A State may pay for bus
transportation to religious schools, [n10] but may not pay for bus
transportation from the parochial school to the public zoo or natural history
museum for a field trip. [n11] A State may pay for diagnostic services
conducted in the parochial school, but therapeutic services must be given in a
different building; speech and hearing "services" conducted by the State inside
the sectarian school are forbidden, Meek v. Pittenger, 421 U.S. 349, 367, 371
(1975), but the State may conduct speech and hearing diagnostic testing inside
the sectarian school. Wolman, 433 U.S. at 241. Exceptional parochial school
students may receive counseling, but it must take place outside of the
parochial school, [n12] such as in a trailer parked down the street. Id. at
245. A State may give cash to a parochial school to pay for the administration
of state-written tests and state-ordered reporting services, [n13] but it may
not provide funds for teacher-prepared tests on secular subjects. [n14]
Religious instruction may not be given in public school, [n15] but the public
school may release students during the day for religion classes elsewhere, and
may enforce attendance at those classes with its truancy laws. [n16]

These results violate the historically sound principle

that the Establishment Clause does not forbid governments . . . to [provide]
general welfare under which benefits are distributed to private individuals,
even though many of those individuals [p*112] may elect to use those benefits
in ways that "aid" religious instruction or worship.

Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756,
799 (1973) (BURGER, C.J., concurring in part and dissenting in part). It is not
surprising in the light of this record that our most recent opinions have
expressed doubt on the usefulness of the Lemon test.

Although the test initially provided helpful assistance, e.g., Tilton v.
Richardson, 403 U.S. 672 (1971), we soon began describing the test as only a
"guideline," Committee for Public Education & Religious Liberty v. Nyquist,
supra, and lately we have described it as "no more than [a] useful signpos[t]."
Mueller v. Allen, 463 U.S. 388 , 394 (1983), citing Hunt v. McNair, 413 U.S.
734, 741 (1973); Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). We have
noted that the Lemon test is "not easily applied," Meek, supra, at 358, and as
JUSTICE WHITE noted in Committee for Public Education & Religious Liberty v.
Regan, 444 U.S. 646 (1980), under the Lemon test we have "sacrifice[d] clarity
and predictability for flexibility." 444 U.S. at 662. In Lynch, we reiterated
that the Lemon test has never been binding on the Court, and we cited two cases
where we had declined to apply it. 465 U.S. at 679 , citing Marsh v. Chambers,
463 U.S. 783 (1983); Larson v. Valente, 456 U.S. 228 (1982).

If a constitutional theory has no basis in the history of the amendment it
seeks to interpret, is difficult to apply, and yields unprincipled results, I
see little use in it. The "crucible of litigation," ante at 52 , has produced
only consistent unpredictability, and today's effort is just a continuation of
"the sisyphean task of trying to patch together the `blurred, indistinct and
variable barrier' described in Lemon v. Kurtzman." Regan, supra, at 671
(STEVENS, J., dissenting). We have done much straining since 1947, but still we
admit that we can only "dimly perceive" the Everson wall. Tilton, supra. Our
perception has been clouded not by the Constitution, but by the mists of an
unnecessary metaphor. [p*113] The true meaning of the Establishment Clause can
only be seen in its history. See Walz, 397 U.S. at 671-673 ; see also Lynch,
supra, at 673-678 . As drafters of our Bill of Rights, the Framers inscribed
the principles that control today. Any deviation from their intentions
frustrates the permanence of that Charter, and will only lead to the type of
unprincipled decisionmaking that has plagued our Establishment Clause cases
since Everson. The Framers intended the Establishment Clause to prohibit the
designation of any church as a "national" one. The Clause was also designed to
stop the Federal Government from asserting a preference for one religious
denomination or sect over others. Given the "incorporation" of the
Establishment Clause as against the States via the Fourteenth Amendment in
Everson, States are prohibited as well from establishing a religion or
discriminating between sects. As its history abundantly shows, however, nothing
in the Establishment Clause requires government to be strictly neutral between
religion and irreligion, nor does that Clause prohibit Congress or the States
from pursuing legitimate secular ends through nondiscriminatory sectarian
means. The Court strikes down the Alabama statute because the State wished to
"characterize prayer as a favored practice." Ante at 60 . It would come as much
of a shock to those who drafted the Bill of Rights as it will to a large number
of thoughtful Americans today to learn that the Constitution, as construed by
the majority, prohibits the Alabama Legislature from "endorsing" prayer. George
Washington himself, at the request of the very Congress which passed the Bill
of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed
by acknowledging with grateful hearts the many and signal favors of Almighty
God." History must judge whether it was the Father of his Country in 1789, or a
majority of the Court today, which has strayed from the meaning of the
Establishment Clause. The State surely has a secular interest in regulating the
manner in which public schools are conducted. Nothing in [p*114] the
Establishment Clause of the First Amendment, properly understood, prohibits any
such generalized "endorsement" of prayer. I would therefore reverse the
judgment of the Court of Appeals. 1. Reynolds is the only authority cited as
direct precedent for the "wall of separation theory." 330 U.S. at 16. Reynolds
is truly inapt; it dealt with a Mormon's Free Exercise Clause challenge to a
federal polygamy law. 2. The New York and Rhode Island proposals were quite
similar. They stated that no particular "religious sect or society ought to be
favored or established by law in preference to others." 1 Elliot's Debates, at
328; id. at 334. 3. In a letter he sent to Jefferson in France, Madison stated
that he did not see much importance in a Bill of Rights, but he planned to
support it because it was "anxiously desired by others . . . [and] it might be
of use, and if properly executed could not be of disservice." 5 Writings of
James Madison 271 (G. Hunt ed.1904). 4. State establishments were prevalent
throughout the late 18th and early 19th centuries. See Mass. Const. of 1780,
Part 1, Art. III; N. H. Const. of 1784, Art. VI; Md. Declaration of Rights of
1776, Art. 472III; R. I. Charter of 1633 (superseded 1842). 5. The treaty
stated in part: And whereas, the greater part of said Tribe have been baptized
and received into the Catholic church, to which they are much attached, the
United States will give annually for seven years one hundred dollars towards
the support of a priest of that religion . . . [a]nd . . . three hundred
dollars, to assist the said Tribe in the erection of a church. 7 Stat. 79. From
1789 to 1823 the United States Congress had provided a trust endowment of up to
12,000 acres of land "for the Society of the United Brethren, for propagating
the Gospel among the Heathen." See, e.g., ch. 46, 1 Stat. 490. The Act creating
this endowment was renewed periodically and the renewals were signed into law
by Washington, Adams, and Jefferson. Congressional grants for the aid of
religion were not limited to Indians. In 1787, Congress provided land to the
Ohio Company, including acreage for the support of religion. This grant was
reauthorized in 1792. See 1 Stat. 257. In 1833, Congress authorized the State
of Ohio to sell the land set aside for religion and use the proceeds "for the
support of religion . . . and for no other use or purpose whatsoever. . . ." 4
Stat. 618-619. 6. Tilton v. Richardson, 403 U.S. 672, 677 (1971); Meek v.
Pittenger, 421 U.S. 349 (1975) (partial); Roemer v. Maryland Bd. of Public
Works, 426 U.S. 736 (1976); Wolman v. Walter, 433 U.S. 229 (1977). Many of our
other Establishment Clause cases have been decided by bare 5-4 majorities.
Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646
(1980); Larson v. Valente, 456 U.S. 228 (1982); Mueller v. Allen, 463 U.S. 388
(1983); Lynch v. Donnelly, 465 U.S. 668 (1984); cf. Levitt v. Committee for
Public Education & Religious Liberty, 413 U.S. 472 (1973). 7. Board of
Education v. Allen, 392 U.S. 236 (1968). 8. Meek, 421 U.S. at 362-366. A
science book is permissible, a science kit is not. See Wolman, 433 U.S. at 249.
9. See Meek, supra, at 354-355, nn. 3, 4, 362-366. 10. Everson v. Board of
Education, 330 U.S. 1 (1947).

11. Wolman, supra, at 252-255. 12. Wolman, supra, at 241-248; Meek, supra, at
352, n. 2, 367-373. 13. Regan, 444 U.S. at 648, 657-659. 14. Levitt, 413 U.S.
at 479-482. 15. Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203
(1948). 16. Zorach v. Clauson, 343 U.S. 306 (1952). ( End of Part
Two--TheName888)
---------
Remember: Jesus is Lord!
Romans 10:9-10, John 14:15-21, Acts 2:38, Eph 2:7-10, Matthew 5:3-16, 1Cor 15,
John Chapter Three, Romans Chapter Eight, The Book of First John. :)

http://www.unshackled.org/ Old Time Radio Drama / Lives Changed by Christ

"The Gospel is about what God has done for us and what we
can become in Christ; it's about a relationship with Christ being
the answer to our deepest needs. The Good News offers lost people
what they are frantically searching for: forgiveness, freedom, security,
purpose, love, acceptance, and strength. It settles our past, assures
our future, and gives meaning to today. It is the best news in the WORLD."

-----Pastor Rick Warren

Page 224, The Purpose Driven Church, Copyright 1995, ISBN 0-310-20106-3

K-Love : Christian Music, News and Information.

http://klove.com/

Outstanding Bible Teaching online: Thru the Bible Radio.

http://www.ttb.org/

Multi-Bible Translations including non English.

http://bible.gospelcom.net/

http://bible.gospelcom.net/cgi-bin/bible

--------
Civil Rights and Christian Activism. "Letter From a Birmingham Jail"

http://hometown.aol.com/thename888/myhomepage/index.html

__________________________________

"Most High, glorious God, enlighten the darkness of my heart, and give me a
right faith, a sure hope, a perfect charity."

----St Francis of Assisi
-

Mathematics do not lie. For an outstanding Statistical Analysis of why
Evolution is false and that the prophecies of God's Holy Prophets are true.
See the following book:

Title : A Skeptic's search for God.

Subtitle: Convincing evidence for his existence.

By Ralph O. Muncaster

ISBN 0-7369-0452-2

Copyright 2002.

Harvest House Publishers: Eugene, Oregon 97402.
---------------

"Reasons last step is the recognition that there is an infinite number of
things that go beyond it"---Blaise Pascal.

http://www.ankerberg.com/The-Gospel-of-Jesus-Christ.html

http://www2.gasou.edu/facstaff/etmcmull/FUCHIDA.htm

Ken Smith · Guest

John 14 15-21 wrote:


www.evangelicalview.com Leading Religious, News and information	Part of the Identityscape.com network... getxfactor.com jmoodmusic.com smartbusinesschoices.com mintdepot.com lowfaresalways.com evangelicalview.com shoppingpodder.com soproudlywehail.com webnews.ws currenthumor.com

Evangelical Views - the Best of UseNet Religious Postings! Forum Index -> Christian Calvary-Chapel Forum
Page 1 of 1