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The Establishment Clause of the First Amendment: Religion in Public Schools Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion to another. It enforces the separation of church and state. The free exercise clause prohibits the government, in most instances, from interfering with a persons practice of their religion. Chief Justice Roy Moore, on the night of July 31, 2001, installed a 5, 300 -pound monument inscribed with the Ten Commandments in the rotunda of the State Judicial Building.
Due to that action and the subsequent lawsuit filed by three Montgomery attorneys, the question of religion and government has been debated in newspapers throughout the state. The First Amendment is considered by many to be open to interpretation because it is considered ambiguous: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... Many people say the First Amendment prohibits government from interfering with churches and does not mean religion cannot be recognized and supported by politics. Others say the First Amendment calls for the complete separation of church and state, limiting the practice of religion solely to churches and private homes. US citizens have historically relied on the US Supreme Court to make those interpretations. (Powell) There are only two types of religious cases that can come before the high court- exercise and establishment, named for the key words in the First Amendment concerning religion. Exercise cases deal with allowing people to practice religion and the placement of restrictions on what they are allowed to do in the practice of religion.
In the 1946 high court ruling of Marsh v Alabama, the Court ruled that Jehovahs Witnesses have a right to distribute religious literature on the streets of a town. A slim majority of the Court upheld an Opelika ordinance requiring a fee for a license to sell books in the 1942 case Jones v Opelika. (Fischer) The case was brought by Jehovahs Witnesses who wanted to sell religious material in that city. The Court later overturned the ruling in Murdock v Pennsylvania. The Justices decided imposing a fee to sell religious material door to door was too great a burden on religious liberty. Establishment cases decide if a law is favoring one religion over another or if a law is making a state-sponsored religion. According to web the Web-site of a textbook publishing company, the Alabama legislature began enacting a series of laws beginning in 1978, which some people believed were meant to encourage prayer in public schools.
The moment of silence law was first passed in 1978, and the law said it was meant for meditation. The law was amended in 1981 to allow meditation and voluntary prayer. The Alabama legislature then authorized teachers to lead willing students in a prayer to Almighty God... the Creator and Judge of the World. (Powell) In an unusual decision, the federal district judge hearing the case declared the laws constitutional, stating that Alabama has the power to establish a State religion if it chooses to do so, the Web-site states.
When the case was appealed, the Federal Court of Appeals overturned the ruling and found the two other laws conflicting with the Establishment Clause of the First Amendment. The state of Alabama then appealed to the high court. The high court ruled 6 - 3 the law was invalid. In making its ruling, the Court relied on the so-called Lemon Test, articulated in Lemon v Kurtz man in 1971. The Lemon Test states legislation must have a secular purpose, its primary effect must neither advance nor inhibit religion, nor create excessive entanglement of government and religion.
This three-pronged test has become the standard the Court uses to analyze laws involving religious issues. The Alabama Senate recently voted 26 - 0 for the Ten Commandments Amendment, which will allow the placement of the Ten Commandments on state property. The amendment, if passed in the Alabama House, will go before voters in a statewide referendum. The amendment is similar to one passed by Kentucky, which was later overturned by the high court in the 1980 Stone v Graham case. The law required each public elementary school to place a copy of the Ten Commandments on its wall. The Kentucky legislature attempted to overcome an Establishment Clause lawsuit by inserting a notation on each copy of the Ten Commandments that read the secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.
The high court, in using the Lemon Test, ruled the Ten Commandments had no secular purpose. (Powell) Larry Darby, attorney at law, Alabama state director of American Atheists Inc. and president of the Atheist Law Center Inc. , believes church and state should be completely separate. There should be absolute separation between religion and government, Darby has said. I look to the wisdom of James Madison, chief architect of the US Constitution when he said: Strongly guarded as is the separation between religion and government in the Constitution of the United States.
The danger of encroachment by ecclesiastical bodies may be illustrated by precedents already furnished in their short history. Darby also opposes the Ten Commandments monument installed by Moore. Individual government employees are free to be superstitious at home and at their places of worship, Darby says. But the machinery of government should never be used to promote any religion or god-beliefs. The Ten Commandments case fails the Lemon Test when applied to the first requirement, Darby says. They [the Ten Commandments] have no secular purpose whatsoever, he said.
The first part is have no other gods. Its a religious text in a religious book. Some parts may have a secular aspect, but it's not unique to religion. The basic laws of not killing and not stealing are part of nearly all cultures and civilizations, he adds. (Powell) Although many religious people think the high court, under the influence of Atheists, ruled out prayer in school, Darby says prayer is allowed in school. Prayer has never been disallowed in schools, he says.
What is not lawful is government employees, principals, teachers, etc. , coercing, encouraging or sponsoring religious beliefs and practices. Any employee or pupil may pray silently as much or as little as he or she desires while at school. Attorney Chad Tindol, who follows the issue, has a different viewpoint. The First Amendment has fundamental conflict, he said. It allows free expression but places limitations on the government. I do not think the First Amendment bars government recognition of religion, but was to bar Congress from recognizing a single Christian denomination.
Tindol says the First Amendment originally did not apply to the states, but states were later held accountable to the Bill of Rights by the passing of the Fourteenth Amendment. I think Alabama courts have a right to put the Ten Commandments on display, Tindol said. But Im not sure Justice Moore, as chief justice, has the sole authority. (Powell) Darby and Tindol agree that prayer has never been banned in schools. Students have the right to pray, but there is a restriction on government officials requiring prayer of a certain type, Tindol says. Theres also a restriction on prohibiting prayer. Tindol claims the Lemon Test misstates the First Amendment.
I dont think the Lemon Test is correct because it says a statute must have a secular purpose. Many laws have only a moral purpose, Tindol says. He also argues the Christian religion was the foundation of law. One of the tenets [of Christianity] is respect for human life and individualism, which is entirely consistent with the idea of freedom of religion, Tindol maintains.
According to Tindol, all of the Founding Fathers were either Christian or Deist, and their idea of God and government was shaped by what they learned and experienced in Christianity. There is a prohibition in the First Amendment of government interfering with churches, he asserts. The only prohibition against churches is they cannot ask the government to establish religion. If a certain church took control of the government, they could not prevent the free exercise of other religions. Although religious cases in recent years have been heard by the high court, there has not been much change in the law's stance on religion and government. The high court has consistently defended the free exercise of religion as well as the right not to practice religion.
Chief Justice Moore is able to quote law and the Founding Fathers extensively, but it is doubtful the high court will break precedent set by the Lemon Test and Stone v Graham to allow the Ten Commandments to be displayed in a publicly funded building. (Powell) The government has no right to intervene or censor nay material. This view is differs from the traditional view, in that traditional view on press principles are beliefs that articles and publications are legitimate as long as they are advocated by credible material. Absolutists believe in self-opinion. Freedom of religion is one of the most important issues since the beginning of time.
Many groups migrated from Europe on their pious beliefs. One of the most important clauses is the establishment clause. The clause created by Thomas Jefferson, is meant to establish a barrier or separation between religion and the state. The church and state in no way can overlap one another and are two different groups. The free exercise clause bans the government from outlawing an individuals view in religion.
Individuals have the right to practice any religion that they wish without government influence and interventions. Freedom of Assembly is the right to create a group for own views and to be a heard. Right of Assembly becomes difficult when a certain group does not follow the guidelines of peaceful protest and violence is the result. The right of association and the right of petition relates to the right of assemble because you are creating or joining a group that has the same interest as the individual.
The right of associations is when an entity wishes to associate itself with a group that one feels is similar in beliefs and views. The right of petition also relates to right of assemble in that, when you file a petition you are doing it peacefully and expressing your view to others. As long as it is accomplished with no hostility or conflict, it is reckoned freedom of assembly. (Fischer) Of course, this experiential knowledge was a foundational reason for the emigration of many to America, resulting ultimately in the creation of a new nation. This then is the genius of the Establishment clause: it cut both ways, necessarily and rightly, though not explicitly so.
Because it was patently obvious that no religious institution or sect could be the warp and woof of the new nation, Jefferson spoke primarily to prohibiting government establishment of religion, ultimately declaring a wall of separation between church and state as essential to Americas survival. Putting this idea in historical context, there were (as always) those politicians, government officials, and influential citizens possessed with what is essentially a dual intellectual citizenship; religion informing their life at least equally, oftentimes more, than any political doctrine, just as there were some for whom religion was their political doctrine. Some preached on Sunday and legislated, as it were, on Monday, apparently loath to distinguish clearly between their ecclesiastic and civil authority. If not checked, they would attempt to establish or at least unduly engraft into the machine of government, as Jefferson said, their religious doctrine using their established political-governmental power, or influential access to this power, explicitly when necessary, implicitly whenever possible, using euphemism where clear expression would reveal their hand.
This was and is the essence of the issue; the essential problem. (Aeschliman) Logically considered, why would the state seek to establish or engraft religion? Only those within government or those seeking political power with such an agenda could possibly present a threat. It is inconceivable that the agnostic, atheist, religiously apathetic, or religiously tolerant would have any such agenda. Clearly, they are content with a wall of separation, and it was self-evident, as I have stated, that no established church could frame the government. The questions of where and with what language the most constitutionally sound barrier could be erected without denying first amendment rights were the most perplexing. The answer is the simply elegant words of the Establishment clause, purposefully imprecise allowing wiggle room for the disingenuous to claim essential first amendment rights, but whose plans would become evident to the vigilant, ultimately denying the infiltrators the fruit of their plans.
In contrast, the narrow interpretation of the establishment clause by religious extremists may indicate indifference, ignorance, or malevolence to this wisdom. Such wisdom is arguably the consequence of centuries of public policy experiment and experience distilled by brilliant, libertarian minds. If we truly value liberty and freedom, we would be wise to grasp Jefferson's opinion in its fullness. Their constricted establishment interpretation puts all, they included, at risk. (Morris) Consider a natural phenomenon as an illustration of the danger. An estuary is functionally an interface between fresh and salt water where the two sources or bodies never truly merge; they cannot, for one or the other would cease to exist, destroying the system. This establishes a natural and essential separation, highlighted by a grey area.
For argument sake, assume them proportionate; again, the direction of an intrusion would prove inconsequential, the result being the same: systemic collapse; so it is with government and religion. Maneuvering in this grey area depends largely on the integrity of those involved. Will they check their motivation, understand their constitutional burden, and desist from intrusive action voluntarily? This is a proverbial slippery slope. We have enough votes to run this country... and when the people say, we have had enough, we are going to take over (Aeschliman) A person cannot defame another person.
If there is more that two people present when a person is calling another person dishonest, incompetent, etc. , it is considered slander. If there are two people, it is not considered slander. A person also cannot use fighting words. These are words that provoke violence.
Listeners to a speech cannot also use a hecklers veto. This is when an audience acts disruptive in response to a speaker. This violates the speakers rights. Hate speech has also been under fire. Many campuses have said that their students could not speak badly about each other based in race, sex, etc. , but the Supreme Court said that it violated the students first amendment rights. Many people use their own bodies to express themselves.
People can use their bodies to express themselves to some extent. There are limits to this though. A good example is nudity. A person cannot run naked in a public place legally. Even though they might say that they are expressing themselves and that they are protected under the first amendment, they are not. This is what many people consider obscene.
This offends many people. Parents do not want to have to worry about their children being exposed to such things. If the things a person does with his bodies are limited to a certain audience (a strip club), then people might see this as being ok. This way, kids will not be exposed to such things. The first amendment has brought with it many arguments over peoples rights. People think that they can do whatever they want, but they cannot.
As long as the way they express themselves does not cause violence, offend others, or is considered obscene, it is ok. If it does do any of those things, it violates others rights and should not be tolerated. Consequently we may state that the Religious Clause is rather necessary and justified in its practice and thus should be maintained by courts. In the battle between consciousness and mechanism, between human and sub-human, proponents of intelligent design wish simply to have students in tax-supported public schools introduced not just to materialist principles, but also to the arguments and evidences for the existence of design and purpose in the self, nature, and the universe - arguments and evidences that have persuaded and inspired reflective persons across many cultures and many centuries. Materialism should not be our established orthodoxy. Bibliography: Denenberg, Barry.
Review of the Establishment Clause. New York: Scholastic Books, 1990. Morris, Aldon D. The Controversies of the First Amendment. New York: The Free Press, 1984. Scott, Richard.
Freedom of Religion. New York: The Chelsea House, 1987. Fischer, Ronald J. Religion in Public Schools. Syracuse, NY: Syracuse University Press, 1997. Aeschliman, Matt D.
Providence Lost - and Found? (Law, Darwinism, and Public Education: The Establishment Clause and the Challenge of Intelligent Design), From National Reviewer Magazine, issue September 2003. Doerr, Edd. Trashing the First Amendment. From Humanist Magazine, October 2002. Powell, Vic.
Chief Justice Roy Moore and the First Amendment, From American Atheist Magazine, issue October 2003.
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