Let's get some facts straight first about the Constitution and the Supreme Court:
1) The Supreme Court wasn't granted the power of Judicial Review by the Constitution. Prior to the landmark case of
Marbury v. Madison (1803), the Supreme Court was considered a superfluous body and there were talks of getting rid of it. Chief Justice Marshall, however, saw an opportunity to delineate what the role of the Supreme Court would be in government. In keeping with the Constitutional framework of checks and balances, Marshall interpreted the role of the Supreme Court to be that of Judicial Review - that is, the Court would keep the other two Branches in line by reviewing whether actions of government before the Court is allowed within the Constitution or if the Constitution has been violated by the action. But understand that the Judicial Branch has no real power. The Supreme Court does not have a military to enforce its decisions, it cannot punish anyone for disregarding a Court decision. And even if there's a particular topic the Court wishes to address, it has to wait for a case to get to it. In short, neither of the other two Branches, the states, nor any part of the Federal Court system has to follow anything the Supreme Court decides and even if the Court wishes to clarify an issue, it has to wait for the right case to come along. The Court has less power than people imagine.
2) The Bill of Rights was Madison's brainchild. If you are going to quote anyone, quote Madison, who fervently believed in keeping the Church and the State separate. To quote Madison
quote:
Nothwithstanding the general progress made within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Gov' & Religion neither can be duly supported: Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst.. And in a Gov' of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov will both exist in greater purity, the less they are mixed together; [James Madison, Letter to Edward Livingston, July 10, 1822, The Writings of James Madison, Gaillard Hunt]
3) The full text of the 1st Amendment reads,
quote:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The specific part of the First Amendment people focus on is
Congress shall make no law respecting an establishment of religion commonly referred to as the Establishment Clause. Because language in the Constitution is rarely clear and open to interpretation, there have been many different doctrines of what this means, all of which try to draw upon the beliefs of the Founding Fathers. These doctrines are
a.
Wall of Separation - Interpreted Justice Black in
Everson v. Board of Ed. (1947), Black wrote in the Court's opinion that
quote:
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
thus separating Church and State with a wall. The State can have nothing to do with the Church and the Church has nothing to do with the State. Oddly enough, the case dealt with using government funds to send children to a parochial school to which Black said was not unconstitutional.
b.
Religion Neutral - I'm not sure of the exact term, but the idea is that government can be friendly towards all religions, as long as government does not favor one over the other. A specific example is that all churches are tax-exempt. The test often used to test for this is the Lemon Test created
Lemon v. Kurtzman (1971) The Lemon Test has three prongs (sometimes a fourth prong introduced by Justice O'Connor is used) in which legislation must show it has a secular legislative purpose, does nothing to advance nor inhabit any religion, and does not result in excessive entanglement of government and religion. O'Connor's corollary is the endorsement test which tests whether the government action is intended to show endorsement or disapproval of a religion.
c)
Religion Friendly - Again, uncertain of the exact term, but basically Government can do any thing it wants with regards to religion EXCEPT establish a state religion.
4) Once again, judging solely on the wording of the Constitution, we are uncertain as to how to interpret it. The Founding Fathers were well-educated and well-read. Much of their ideas present in the Declaration and the Constitution were drawn from celebrated thinkers like Locke, Rousseau, and Hobbes. They were also well aware that many of the colonists were unwelcome in England because they were not members of the state church of England. And based upon their correspondence, writings, speeches, and actions, it is clear that many of the Founding Fathers were Deists, but may not necessarily have been Fundamental Christians. And even if they were fundamentally Christian, it would still be clear that they expected the Church and State to be separate entities.
What does that mean for this argument? Well, the current test for the Establishment Clause suggests that public schools could teach creation stories as long as they were willing to teach all creation stories and as long as they don't teach those creation stories in science classrooms. Again, keeping in mind that the First Amendment only specifies that
Congress shall make no law respecting the establishment of religion and considering the history of the Founding Fathers and their spiritual nature, it is unclear whether many of the Founding Fathers would agree with this statement. However, it is clear that beyond traditional practices, the Founding Fathers would frown upon having only one specific creation story taught as that would begin to favor one religion over all others and while may not create a
de jure state religion, such an action and other actions by government favoring one specific religion would constitute a
de facto state religion which would be against the spirit of the Constitution.
Edited by Izanagi, : No reason given.
Edited by Izanagi, : No reason given.
Edited by Izanagi, : No reason given.
Edited by Izanagi, : No reason given.
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