How the Court Misapplied the "Establishment Clause"
and created New Law Prohibiting the Free Exercise of Religion
-
Should religion, but not contrary ideologies, be systematically banned
by schools and other public institutions, even when initiated at the
level of the teacher or student?
The controversy of school prayer and religion in public institutions is an
exercise in common sense and law, not ideology.
Disregarding our history and prejudices, the above question does not pass the
common sense test unless there is some bad element in religion that should cause
parents to shield their children from it. Although this may be a hidden agenda
of some advocates for separation, it is not the argument used for
justifying the prohibitions on religion.
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Religion is banned from public schools because it is protected by the
Constitution.
This statement superficially fails the test of both logic and law.
If religion is given special protection, it should not be singularly restricted.
The founders of our country did not desire that religion be banned from
classrooms, yet ostensibly the best legal minds in the land have done that on
the basis of the nation's founding law.
The First Amendment prohibited Congress from passing any law "respecting
an establishment of religion" or "prohibiting the free exercise thereof.".
This prevented the United States from establishing a
national religion and guaranteed freedom of religion for the States and
people.
The Tenth Amendment, one of the ten amendments of the Bill of Rights, gave
the "powers not delegated to the United States by the Constitution" to
"the States respectively, or to the people".
The First and Tenth Amendments provided the States an unlimited religious
freedom, and this continued for many years.
Civil War and the Fourteenth Amendment
The Fourteenth Amendment handed First Amendment rights to former slaves, by
recognizing persons as citizens of both the United States and their State,
and disallowing States from passing any law "which shall abridge the
privileges or immunities of citizens of the United States", nor depriving
persons of "life, liberty, or property" without "due process" or "equal protection"
A 1943 Supreme Court decision applied the Fourteenth Amendment to the First
Amendment Establishment Clause. In 1947 a Supreme Court decision (Everson v.
Board of Education of Ewing TP), citing the earlier case, inserted the word "State" in place of "Congress",
redefining the law.
It read: "..a state 'shall make no law respecting an establishment of
religion...' "
If there is a valid legal explanation for the verbatim
substitution, the resultant was neither the intent of First
Amendment nor Fourteenth Amendment authors. The Supreme Court effectively
usurped the authority of the people by writing new law prohibiting the free
exercise of religion, something that is expressly forbidden of Congress by the
Constitution.
To demonstrate the problems created by a simplistic interpretation of the
Fourteenth Amendment, the same logic might be applied to the Tenth Amendment
in the Bill of Rights.
- "The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people."
An exercise in substitution effectively renders state laws unenforceable, granting the people a constitutional right to be free from government.
Powers not delegated to the United States will be privileges reserved to the
People, not the States, even those powers delegated
to the States, because the powers not delegated to the United States will be privileges or immunities granted to the
people.
The ludicrous example is little different from Court interpretation of the Establishment
Clause, which has followed a path of similar absurdity, the
Court ultimately equating a student at a graduation ceremony with Congress, and
his verbalized prayer as the establishing of religion by government.
The Fourteenth Amendment extended the protections given to persons, by the
Constitution, to the States, granting them unrestricted safeguards for the free
exercise and other rights. This was the intent of the Fourteenth Amendment.
At that time, persons were free from United States religion, but not States' religion,
just as they were immune from restrictive federal but not State law concerning
speech and other constitutional rights.. The Fourteenth amendment disallowed States from passing a
law abridging the rights granted to United States citizens.
The prohibition on Congress from making any law establishing
religion cannot be directly applied to the States, because a law, in and of
itself, will not abridge the privileges and immunities of citizens, and
the States, unlike Congress, are not expressly forbidden from
establishing religion.
A yet to be written law cannot be declared unconstitutional, but the Court does
exactly that with a precondition that the States cannot establish religion,
because the prohibition must be derived from supposition that a law
establishing religion will abridge citizen privileges and immunities..
A student's reciting of a prayer in a public school is not unconstitutional if
it does not abridge other's right to free exercise, even if the Court chooses
to regard it as the establishing of religion by government, because the
establishing of religion by government (Congress excepted) can only be
unconstitutional when it infringes on "the privileges and immunities" of
citizens.
This can be better clarified by examining freedom of
speech, which is similarly protected by the First and Fourteenth amendments.
It is not unlawful for States to pass a
law restricting speech, but citizens can challenge it's lawfulness
when it infringes on their rights. Congress, however, may not pass such a
law because the Constitution expressly forbids it.. Even though the
outcome will be the same, it is an important distinction of law because the
latter can be challenged on it's face, but the former only when citizens rights
are violated. Applying it to religious freedom, the Court
cannot consider the Establishment Clause as a justification for
overturning a law that was not passed by Congress, and the outcome is not the
same, because an establishing of religion, unlike a restricting of speech,
is not a violation of citizen's rights. A court must consider only the effect of
established religion, and therefore, a State law cannot be declared invalid on
the basis that it is an establishing of religion.
The Founding Fathers did not simply forget to include the states when they
placed restrictions on Congress. In contrast to other rights protected by the
First Amendment, citizens practice their free exercise by way of
the public institutions that they fund and manage, through their elected
representatives. Prohibiting Congress from interfering with religion gave to the
states a greater freedom of religion, but to prohibit religion from the states bans it
from the public's daily lives. First and Fourteenth Amendment authors did not
ban religion from public institutions and citizens daily lives.
Slavery would still be legal with just Fourteenth Amendment protection,
but slaves would be free. Slavery was eliminated clearly and directly by the
Thirteenth Amendment: "Neither slavery nor involuntary servitude ... shall exist
within the United States, or any place subject to their jurisdiction.", and the
Fourteenth Amendment, passed a few months later, gave them freedom in their
State of residence. If citizens had
wanted a removal of religion from their daily lives, they would have written it
into the Constitution.
Even if the States were disallowed from passing laws establishing a religion,
citizens should be free to openly verbalize their religious beliefs without fear
of state interference, because the Constitution grants these rights generously to all
citizens.
The argument that the mere hearing a religious message from another student,
or even a teacher or principal, may prevent the free exercise of a non-believer
or another faith is not valid. People habitually find many things to be
offensive. What if, for instance, the President of the United States accepted an
invitation to speak at a commencement ceremony. Graduates of a different
political party may decide that their right to freedom of belief has been
violated because the President's politically slanted speech amounts to a
government endorsement of a political party, which is unlawful. What if a
corporate businessman were asked to speak, but some students were
anti-capitalist?
If a Marxist were invited and honored at graduation ceremonies and Christian
students complained, would the Court offer them the same protections given to their
adversaries? No, because Marxism is not protected by the Constitution.
How ever one attempts to apply the Fourteenth Amendment to the Establishment
Clause, it is not difficult to see not just the inherent unfairness in current
law, but also that Court interpretation of the Establishment Cause has
accomplished exactly the opposite of it's intent..
Religions of past eras were the governments, and any political or social
ideology is a religion by the broader dictionary definition, be it Communism,
Capitalism; even Philosophy and Psychology. That only religions professing a
belief in God are banned from public institutions, is a violation of Freedom of
Speech and Equal
Protection. That just religion is barred precisely because it is given protected
status from federal interference, is an absurdity.
The protection of tax exemption for churches is equally available to
charitable, educational, literary and scientific organizations. The court
has not barred the ideas and practices of NOW, the NAACP
or PUSH from publicly funded institutions because they are tax
exempt.
The arguments directed against religion are applicable to any organization
espousing ideas and social rules and values, even those that are not
tax-exempt:: Tax money is used for furthering beliefs that some taxpayers may not
approve of, the presenting of those beliefs might be construed as a policy of
the government, and citizens could be unduly influenced by ideas that they would
otherwise find unacceptable.
The only equitable solution would be the banning of all beliefs from public institutions, or the elimination of public entities.
Otherwise, students and citizens will be subjected to a variety of ideas and
thoughts, some of which they are not in agreement with.
The absurdity of the Court's argument for prohibiting religion in public
institutions is apparent on it's face. Advocates of the free expression of
thought must join with the religious believers who are denied their equal
protections and right to free speech and religion. This is not an issue of
ideology, but purely common sense and law.
-States Liberty Party, July 3, 2002
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Related Articles...
The Establishment Clause
prohibits citizens rights, and is not a Fourteenth Amendment protection.
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