The MU SASHA Blog

The official blog of University of Missouri Skeptics, Atheists, Secular Humanists, & Agnostics

Making the Establishment Clause Work for You!

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The Establishment Clause is the bane of the religious right’s existence.   This blog is going to explore why.  It’s also going to explore how it can be used by religious folk.  For the most part, I’m going to be re-posting facebook comments in an effort to lessen the burden of actually writing.  Also, if I use the word “opinion” I’m probably referring to a judge’s explanation of a verdict.
The relevant portion of the 1st amendment, known as the Establishment Clause, states, “Congress shall make no law respecting an establishment of religion…” This has been interpreted by the Supreme Court and many (if not most) legal scholars to mean that the federal government cannot endorse any religion or irreligion. It must remain neutral. In the words of Supreme Court Justice Souter (quoting another opinion in support of his own), “…the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion…'”  So while the words “separation of church and state” may not be in the Constitution, the basic idea of it certainly is.  This is the reason why the National Day of Prayer, creationism in schools, and 10 commandments in courthouses are (usually) unconstitutional.  I’ll explain why I added (usually) if there’s a demand.
Now, let’s explore how this can be misinterpreted by religious folk.  I’m going to be actually quoting a Christian who responded to me.
Unnamed Christian:  “@Maggie: “”Congress shall make no law respecting an establishment of religion…” This has been interpreted to mean that the federal government cannot endorse any religion or irreligion”
Who’s interpretation? Your interpretation? The key phrase in the first amendment is “shall make no law”. Hmmm, I wonder what that could mean. IT MEANS, no LAW shall be made that encroaches on a state’s exercise or non-exercise of religion. You intentionally reworded it to say that “the federal government SHALL NOT ENDORSE any religion…”, completely leaving out the key phrase of the amendment. How about you people put your own selfish agendas aside and start looking at the facts objectively. No law is being made here. Nothing is being encroached upon. The amendment simply takes as a given that states will exercise religion and declares that they may do so freely. Obamo, along with just about every president before him, in “endorsing” the national day of prayer is simply reaffirming this fact.”

I suppose that if someone just picked up the Constitution and read the 1st amendment, this viewpoint wouldn’t be absurd.  But it is absurd.  It’s as if someone argued that the 2nd amendment protected the right to display bear limbs and supported the assertion by using obnoxious caps and being inappropriately condescending (BEAR ARMS.  HMMM.. wonder what that could mean!?).  What is really funny about this though is that the National Day of Prayer is a law.  28 U.S.C. 119 if anyone’s interested.

The key word in the 1st amendment is not “law” but “establish” (hence the term Establishment Clause rather than Law Clause).  As I said the current rule on this, given to us by the Supreme Court, is that “establish” means something along the lines of endorse.  Justice Antonin Scalia is the strongest opponent of this interpretation.  He’s very dishonest in his approach however.  He is an originalist, so he seeks to find the founding fathers’ original intents in crafting the 1st amendment.  He takes examples like Washington giving a Thanksgiving proclamation in which he thanks God as support for his position.  He also thinks that the founding fathers thought it was okay for the federal government to endorse not just God, but the monotheistic God of the Abrahamic religions.  His dissents fail to mention the damning pieces of evidence that contradict his position (IE: Jefferson’s letter characterizing the Establishment Clause as a “wall of separation of church and state”).  Rather, Scalia just asserts the separationists were too inconsistent to be of any help.
So, moral of the story, the Establishment Clause was one of the more brilliant and fore-thinking pieces of law crafted by the founding fathers.  I suggest anyone interested in protecting our civil rights wield it like a sword in fighting against the attempts at oppression and theocratic invasion.

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3 comments on “Making the Establishment Clause Work for You!

  1. Pingback: Can’t we all just get along? Part I « The Official MU SASHA Blog, Updated Daily

  2. Doug Indeap
    May 14, 2011

    Good points. It’s not just the establishment clause though. The principle of separation of church and state is derived from the Constitution (1) establishing a secular government on the power of the people (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office and the First Amendment provisions constraining the government from undertaking to establish religion or prohibit individuals from freely exercising their religions.

    James Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

    Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx

  3. maggiesaurusmay
    May 14, 2011

    I would certainly agree that the Establishment Clause is not the only Constitutional protection from religion. The Wake Forest publication is really great; thanks for the link!

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This entry was posted on May 7, 2011 by in Author: Maggie May and tagged .
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