Sunday, August 14, 2011

Supreme Court Should Overturn State Establishment Clause Cases

Cross City Florida has the honor of being the latest victim of perverse judicial interpretations of the First Amendment’s establishment clause. A federal district court judge, responding to a lawsuit filed by the American Civil Liberties Union, ordered the city to remove a monument in front of the Dixie County courthouse. The monument’s offense? It recites the Ten Commandments.

Thomas Jefferson, in a letter, famously called for a “wall of separation between church and state.” But Jefferson’s colorful words are a grossly inadequate generalization about the establishment clause, which contains no such language.

The clause reads: “Congress shall make no law respecting an establishment of religion . . . .” The key words here are “Congress” and “respecting.” The establishment clause placed restriction only on what Congress (a federal body) could do, not on what state governments could do. And Congress could make no law “respecting,” which means “having to do with,” an establishment of religion. This awkward expression was used because the amendment’s drafters understood that it would do two things, not just one: 1) prevent Congress from establishing a religion, and 2) prevent Congress from interfering if state governments establish a religion. (Several states had established churches when the First Amendment was written; others had religious tests for public officials.)

Most establishment clause cases challenge actions by state governments (including school districts) rather than by the federal government. If the clause were interpreted as written all these cases, including the current one from Florida, would be thrown out of court. Most of them, including the Cross City case, involve actions which it is a stretch to consider “establishments” of religion. But, assuming that they are indeed establishments, the right of the states and school districts to engage in them would be protected by the establishment clause, not prohibited!

But the Supreme Court has been striking down state government actions under the establishment clause for more than half a century. It has held that although the original Bill of Rights (amendments 1-10) placed limits only on the federal government, the Fourteenth Amendment, added after the Civil War, was intended to place many of these same limits on the state governments.

There is convincing evidence that this was indeed intended when Congress wrote the Fourteenth Amendment. And for the most part this “incorporation” of the Bill of Rights made sense. It did not undermine our protection against federal censorship, for example, to hold that the First Amendment also protects us from state government censorship.

But “incorporating” the first dimension of the establishment clause to prevent state establishments as well as federal establishments totally contradicts the clause’s second dimension, protecting the right of states to establish a religion. The Fourteenth Amendment’s drafters intended no such result. Their report when the Amendment was submitted to Congress conspicuously omitted the establishment clause as one of the long list of provisions that would be “incorporated” against the states.

No doubt it would be a bad idea for a state to establish a religion today. But letting nine unelected justices twist a key clause of the Constitution so that it means the opposite of what it originally meant is an even worse idea.

There can be no doubt that the Supreme Court has pulled a fast one here, quite possibly without realizing what they were doing. The proper thing for them to do now would be to recognize their error, overturn all of the cases based on that error, and leave issues of church-state relations to the political and legal process at the state level as our Founders intended.


This article has run in the Gainesville (Florida) Sun.

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