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Misapplied Justice: A History of Modern Religious Prohibition in the United States
The founders of our country barred Congress from creating "an establishment of religion or prohibiting the free exercise thereof". About nine of the thirteen colonies then were religious establishments in some form, and the prohibition against Congress left them free to continue to practice their various religions free from a fear of interference by the new federal government.. James Madison argued for a Bill of Rights for the States, but would not have included an establishment clause. Thomas Jefferson, a vocal opponent of state religions, was as strong a believer in States' rights and government of the people, and never advocated a federal prohibition for the States. The best evidence of the nation's founders intent, regarding religion, is the law itself, which gave the states unlimited power to freely establish religion, and the states did, up until 1833, with Massachusetts the last one to follow Jefferson's lead and eliminate the practice, more on practical grounds than ideological, in contending with various differing religions. The war between the States, just 30 years later, resulted in new amendments to the Constitution, granting former slaves the right of citizenship and freedoms that go with it. The resulting Fourteenth Amendment would 80 years later be used for stripping the states of their long held and exclusive constitutional power regarding religion, and giving Washington complete domination over the states, a power expressly denied by the Constitution. The case was Everson v. Board of Education, and the year was 1947. It involved a rather mundane matter of the use of public transportation for private religious schools. No earthshaking decision was made; the Court found in favor of the practice; but the seed had been placed that would soon begin stripping religion from the public landscape, with a legal precedent which applied the prohibition on Congress from establishing religion directly to the States, so that "a state 'shall not make any law establishing religion or prohibiting the free exercise thereof". The vehicle was the old civil rights law; the Fourteenth Amendment, and the Court surely had no idea that they had made a grave error in law. The amendment had carefully preserved the separation of powers between Washington and the States, yet provided a guarantee that the laws of a state will be applied equally and equitably, in two important clauses applicable to the states called due process and equal protection; but the Court, in one fell of the pen, turned this important balance of powers on it's head. The due process clause, requiring a state to abide by a fair standard of law before depriving a person of his fundamental rights, may be invoked by a federal court to correct an injustice perpetrated upon a person by a state. The new law created by the Court in Everson, which depended on the Fourteenth Amendment, to become applicable to the states, bypassed the key element of a violated right by applying the First Amendment directly to the states, so that law prohibiting Congress became law prohibiting the States, without a a due process violation. The Court had changed the law without explanation before even considering due process! This misapplication of the Fourteenth Amendment criminalized the establishing of religion by a state even when no damage or injury had occurred, yet the Fourteenth Amendment mandates that there be a violated right, before it becomes applicable to the law. This effectively made all religious activity initiated by any public official a crime, even when done at the request of parents. The Everson precedent, usurping the authority of the States, is unconstitutional, giving Washington a power that has been explicitly prohibited by the First Amendment, yet it stands to influence, and does influence, subsequent Court decisions. The misapplied law met it's first test in 1948, just a year after Everson. The case was McCollum v. Board of Education. McCollum alleged that her daughter attended a public school where religion was being taught to other children. She alleged no damages or the abridging of any rights, only that religion was being learned there, in violation of the establishment clause, made applicable to the states by the Everson precedent. The school had initiated the program on behalf of parents, providing 30 minutes of religious instruction only to students of parents who had signed up for the classes. The tutors were chosen by the parents and brought in at no cost to the school, but were subject to school board approval. Separate classes were taught for Protestant, Catholic, and Jewish faiths, and children not participating continued their secular education in another part of the building. Programs like this dotted the landscape of America in varying forms in the year 1948. The Supreme Court, citing Everson, abolished the program on the pretext that it violated the establishment clause, which prohibits Congress from creating an establishment of religion. The Court continues to judge the practice of religion in schools using the Everson precedent, recently prohibiting students from saying a prayer over the school PA system, because school officials had sanctioned the activity. The misapplied Everson law allows the Court to prohibit the practice of religion, even when initiated by schools at the request of the parents, without concern for whether the practice has even violated anyone's liberty or freedom of religious practice. The Fourteenth Amendment due process clause cannot be justifiably applied to a prohibition against Congress establishing a religion when there exists little or no evidence of any abridgment of a citizen's fundamental rights. The Supreme Court should abandon the Everson precedent and restore, to citizens and states, their fundamental First Amendment right to have religion be a part of their daily lives. --States Liberty Party, August 24, 2002, modified 8/27/02 |
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