Interesting comments about the establishment clause in response to that blog post ( althouse.blogspot.com )
" Still - probably shouldn't listen to me. In my frequent less sober moods (such as now) I tend to agree with Justice Thomas that it is comletely irrational to incorporate the establishment clause against the states and that Utah is perfectly within its rights to establish Mormonism as its state religion if it wants to (and I'm not even a Mormon. Not even close).
11:24 PM, May 18, 2006
Simon said...
Charley-
Nicely tee'd up. ;) You have a chance to make a convert here - I'm sympathetic to, but have never bought into, Justice Thomas' theory that the establishment clause resists incorporation (for those wondering what this is about, see Thomas' concurrences in Elk Grove v. Newdow and Cutter v. Wilkinson). If you buy it, what's your best argument for it, as you see it?
11:31 PM, May 18, 2006
Charley Foster said...
I'm shooting from the hip here, but in Newdow, I believe it was, Thamos made the historically correct point that the establishment clause, "Congress shall make no law respecting an establishment of religion," was not only to prevent establishment of a federal religion, but also to make clear that Congress could not interfere with state establishments. (Numerous states had established state religions at the time of the amendment and ratification debates make clear the intent was to protect those state-established religions from federal interference).
Looked at in this historical light, it doesn't make sense to incorporate the establishment clause against the states because it is a clause that establishes a federalist doctrine, not an individual right (In the same way it obviously makes no sense to incorporate the 10th amendment reserving certain powers to the states against the states).
Thomas goes on to argue that, even if the establishment clause can be incorporated against the states: The traditional establishments of religion to which the Establishment Clause is addressed necessarily involved actual legal coercion:
"The coercion that was a hallmark of historical establishments
of religion was coercion of religious orthodoxy and of financial support by force of law andthreat of penalty. Typically, attendance at the state
church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. L. Levy, The Establishment Clause 4 (1986). Thus, for example,
in the Colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of
the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches."
Under this analysis, It seems then that such innocuous state acts such as prayer in school or at sporting events, nativity scenes on municipal property, and The Ten Commandments in courthouses fall far short of triggering the incursion of the establishment clause.
So long as the Mo's don't make me pay for their projects, or go to their clases or services or whatever the hell it is they do over there, pffft, they can HAVE the state religion and inscribe it on the courthouse where I argue cases for all I care.
11:56 PM, May 18, 2006"
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Personally I'm strongly against any real establishment, even by the states, but the argument seems to be a strong one based on the words of the constitution (textualist interpretation) and may be a decent one based on original intent (but then I haven't looked in to the idea enough to be sure). |
