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Incorporating the Establishment Clause, Wrongly

In a supreme irony, the First Amendment’s Establishment Clause, incorporated against state governments by the Supreme Court via the Fourteenth Amendment in 1947, is precisely the type of national usurpation of state government policies that the Clause was adopted to prohibit.

The First Amendment’s religion clauses form the well-known start to the Bill of Rights, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Amendment includes two different religion clauses, an Establishment Clause and a Free Exercise Clause. To understand how these clauses apply to state governments, we need first to understand the First Amendment itself, and then we need to understand the liberty guarantee of the Fourteenth Amendment, which is the means by which some parts of the U.S. Constitution’s Bill of Rights have come to apply to state governments.

While some overlap exists between the two clauses, each serves broadly different functions. When the U.S. Supreme Court first applied the Establishment Clause to the states in 1947—in Everson v. Board of Education—it did so without discussion of the nature of the Establishment Clause itself. The Court merely appealed to dictum from a Free Exercise case from 1943 which struck down a Pennsylvania tax on the sale of religious merchandise. The Court’s decision to incorporate the Establishment Clause was subject to scholarly criticism early on. The debate over the appropriateness of incorporating the Establishment clause revived in the early 2000s as a result of a series of concurring opinions by Justice Thomas.

The criticism of incorporating the Establishment Clause of the U.S. national Constitution and applying it to restrict state governments via the liberty guarantee of the Fourteenth Amendment arose because incorporation is based on a fundamental misreading of the Establishment Clause, and a misunderstanding of the nature of religious establishments. Justice Clarence Thomas initially questioned the application of the Establishment Clause to the states in the 2002 case of Zelman v. Simmons-Harris. He wrote that the Clause “originally protected States, and by extension, their citizens, from the imposition of an established religion by the Federal government.” He added: “Whether and how this Clause should constrain state action under the Fourteenth Amendment is a more difficult question.”

Thomas pushed further in 2004 in a concurring opinion in Elk Grove Unified School District v. Newdow, “I would take this opportunity to begin the process of rethinking the Establishment Clause . . . the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.” He reasserted his position a year later in Van Orden v. Perry, observing that “the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right.”

The Establishment Clause serves two purposes: it both prohibits Congress from Establishing a religion but it also prohibits Congress from meddling with state religious establishments.

This is clear from the otherwise curious wording of the Clause, which states, “Congress shall make no law respecting an establishment of religion . . .” If the only purpose of the Clause were to prohibit Congress from adopting a national religious establishment, there is more direct language that would have accomplished this. Something like, “Congress shall not establish a religion.” Sweet and simple.

Indeed, at one point in the consideration of what was to become the Constitution’s First Amendment, the proposed text considered by the House of Representatives was similarly direct, “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe on the rights on conscience.” The Senate’s originally considered text was similarly direct, “Congress shall make no law establishing articles of faith or a mode of worship . . .”

However, the verbiage of the Clause as adopted provides that Congress make no law “respecting an establishment of religion.” That is, the Clause prohibits Congress from making laws concerning or about religious establishments. This language not only prohibits Congress from creating a national religious establishment, it also prohibits Congress from even making laws concerning religious establishments that existed at the time in the states.

The history of the Establishment Clause is consistent with the double implication of the Clause’s text. During the time of ratification, a common Anti-Federalist objection to the proposed Constitution was that it would allow Congress to establish a uniform religion over the entire nation. Anti-Federalist commentator “Deliberator,” for example, objected to the unamended Constitution because “Congress may, if they think it for the ‘general welfare,’ establish an uniformity in religion through the United States.”

The accent of the objection is on the “uniform” rather than on the “establishment” part. A number of states had religious establishments at the time. (Religious establishments were generally understood narrowly at the time to mean state-imposed taxes going to support churches.) The Anti-Federalist writer “Agrippa,” from Massachusetts, whose state constitution expressly authorized tax support for churches, appealed to state diversity as the concern with the possibility that Congress be left with the power to establish a national religion:

Attention to religion and good morals is a distinguishing trait in our character. It is plain, therefore, that we require for regulation laws, which will not suit the circumstances of our southern brethren, and the laws made for them would not apply to us. Unhappiness would be the uniform product of such laws; for no state can be happy, when the laws contradict the general habits of the people, nor can any state retain its freedom, while there is power to make and enforce such laws.

In considering amendments to the newly adopted and functioning national Constitution, James Madison initially proposed an establishment clause that dealt with the first issue only. It dealt with Congress affirmatively establishing a religion for the nation without dealing with the second potential danger of Congress meddling with state religious establishments. Madison initially proposed this language, “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, not shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”

Both House and Senate altered Madison’s language. Because both used different language to do so, the phrasing needed to be harmonized in a joint committee. What came out was the language prohibiting Congress from making any law “respecting” a religious establishment. The language not only prohibits Congress from affirmatively establishing a national religion, it also prohibits Congress from making laws that meddle with state establishments.

The Establishment Clause as initially adopted thus contains a structural protection not for individuals, but for protection of state government religious establishments. This structural protection cannot be incorporated against the states by the Fourteenth Amendment. It makes no logical sense to do so given the structural guarantee protects state governments from national-level intrusion, not individuals. It would be akin to suggesting that the Tenth Amendment be incorporated against the states. It simply makes no sense.

A few recent law review articles have attempted to recover incorporation of the Establishment Clause by arguing the Fourteenth Amendment responded to state religious impositions in southern states prior to the Civil War (for example, here). Problems, however, bedevil these attempts. First, this conflates impositions on religious free exercise—which is an individual right—with religious establishments, which need not impose on individual rights. Second, it applies older, now rejected versions of “originalism” that allow what is actually written in constitutional texts to be amended by subjective intentions of drafters or their idiosyncratic legislative history.

While there is some overlap between an imposition on religious free exercise and an establishment of religion, robust forms of religious establishments can be created that do not restrict religious free exercise in the least. Despite conventional American wisdom to the contrary, religious establishments do not necessarily restrict religious free exercise.

In Cutter, for example, Thomas observed that “establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers.” An opt out provision, or other use for a tax, could allow individual who do not wish funds to go to support religious institutions from having to do so. Most would say the state level “nudge” would create a religious establishment, but the ability to opt out prevents imposition on an individual right. Or consider a state’s display of the Ten Commandments. As Thomas points out, the mere display of the Ten Commandments, even by the state, does not coerce anyone.

The point is that the structural guarantee of the Establishment Clause can be preserved even with the incorporation of protections that prevent restricting individuals’ religious or non-religious observances.

The wisdom of any state religious establishment, however tepid, is another matter entirely. The important point cannot be lost, however, and it is one of interpretive integrity: The structural guarantee of the Establishment Clause was adopted to prevent the national government from imposing national-level uniformity on state-level religious policies. The U.S. Supreme Court’s incorporation of the Establishment Clause against the states in 1947 not only ignored its text and purpose, but held precisely the opposite of what the text and the purpose of the Clause exist to achieve.

Reader Discussion

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on November 29, 2019 at 07:19:26 am

Let's say you're in China and you see Buddhist symbols everywhere, including on government property and in the court room. Now let's say you, a Christian, are arrested for some crime. Do you think you're going to not be discriminated against by the judge or jury when you see another's religious symbols all around you? Or would you feel more likely to be presumed innocent and not have your Christianity taken into consideration during the sentencing phase if you didn't see Buddhist symbols everywhere?

I'm guessing you'd feel less alienated from your government and feel like you're more likely to be treated equally under the law if you don't see other's religious symbols everywhere you go.

The same applies to atheists. We only expect to get a fair day in court if we don't see symbols encouraging us to adopt a religion everywhere we go. If there's nothing wrong with being atheist, than you don't need to constantly remind us that you aren't be parading your symbols everywhere we go.

Just like if there's nothing wrong with being black you don't need to have statues and paintings of white people everywhere we go--and on the dollar bill. Or if there's nothing wrong with being homosexual, you don't need to have art celebrating heterosexual romance or marriages everywhere we go. Or if there's nothing wrong with owning a gun, you don't need to have art making fun of hunters, like Elmer Fudd.

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Dont Alienate
on November 29, 2019 at 08:15:51 am

If I'm from Somalia, and my parents are muslim, and I see a cross outside the Child Welfare Office and the Courthouse, I'm not going to report that my parents are beating me or starving me because I don't think you're going to listen because I think you only listen to christians because you've got a Christian symbol (cross) outside all the government buildings.

If you want muslims to report female genital mutilation or any other crime, you need to make us feel welcome and included, and you do that by not having your symbols outside every building which I interpret as a sign saying "go away, you're not part of the community that the law protects".

Separation of church and state ensures that non-christians don't feel alienated from their community and government, but instead feel included and protected equally under the law.

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Ayaan Ali
on November 29, 2019 at 10:21:19 am

So the 14th Amendment doesn't matter to you.

Good jawb.

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John Ashman
on November 29, 2019 at 11:11:13 am

Haha Alienate's and Ali's comments!

How does one respond to the absence of thought? Surely not by arguing over what's not there, thought. Indeed, to say anything is to risk the perception of faint praise while forgoing the damnation of faint praise.

Perhaps it's best to damn such comments with feint praise, but writing satire would take far more effort than is warranted by the minor matter of two vacant thoughts. Mockery might do, but I lack Adam Schiff's talent for parody. So, I'll simply ignore the comments. (But I just did what I said I won't do. There's a French phrase for that. Can anyone remind me?)

Scotus has made a train wreck out of the Establishment Clause. Professor Rogers gets it. Justice Thomas gets it (and so much more.)

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Pukka Luftmensch
on November 29, 2019 at 11:29:43 am

The historical evidence simply does not support Prof. Rogers and Justice Thomas' states' rights interpretation of the establishment clause. See Ellis M. West, THE RELIGION CLAUSES OF THE FIRST AMENDMENT: GUARANTEES OF STATES' RIGHTS? (2011), and reviewers unanimously accepted the book's findings. Rogers' interpretation is also based on the erroneous assumption, unfortunately perpetrated and maintained by the Supreme Court, that the establishment and free exercise clauses have different meanings. For the evidence that they were simply two different ways of saying the same thing, see Ellis M. West, THE FREE EXERCISE OF RELIGION IN AMERICA: ITS ORIGINAL CONSTITUTIONAL MEANING (2019).

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Ellis West
on November 29, 2019 at 11:34:55 am

To "Don't Alienate" and Ali:

So by that logic (such as it may be called) if you pass by a butcher shop and some lovely PORK chops and sausages are hanging in the window, we MUST order the butcher to immediately discontinue the practice of displaying his porcine products so as to not upset our rather delicate sensibilities.
We wouldn't do that now would we?

Oops, I forgot, precisely such actions have been demanded by the overly sensitive, passive-aggressive "victims" of this horrid, oppressive Christian society.

Now I am off to have a breakfast of four slices of bacon,fried eggs topped with a lovely slice of prosciutto.
Does this also offend you? does it threaten your sense of self?

Actually, what it does is threaten your ability to control the beliefs and actions of others by invoking a false claim of imminent harm.

Oops, I put in a fifth slice of bacon!

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gabe
on November 29, 2019 at 11:58:31 am

"and reviewers unanimously accepted the book’s findings."

Well that settles it. Here we have far more than the mere "consensus" of the climate change congregation. On this particular constitutional matter we have unanimity of book reviews. Plus we have the commenter citing his own book as proof of the correctness of the commenter's opinion.

That is such stuff as dreams are made on.

And in court it's called "self-serving" and is inadmissible, as is the hearsay deployed in citing alleged unanimous approval of unamed book reviewers.

That life is not a courtroom I agree. But the rules of evidence are a really good way to separate fact from fantasy.
And, to paraphrase Dean Wigmore (who called cross-examination the "...greatest legal engine ever invented for the discovery of the truth.'') in seeking objectivity and accuracy we will benefit by "adding these tools to our toolbox."

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Pukka Luftmensch
on November 29, 2019 at 12:57:39 pm

As long as we can buy and sell marijuana, p0rn, guns, gangsta rap music, and violent video games outside of the butcher shop, he can sell whatever he wants. We just don't want the butcher putting up a giant cross in front of the courthouse across the street from the butcher shop. We won't force our dietary rules on you if you don't force your drug laws on us, deal?

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Muhammed Mo
on November 29, 2019 at 14:33:08 pm

Now for a more serious comment than the above one I earlier made.

It strikes me that once again we observe the "unintended" (or so one hopes) consequences of the Court's jurisprudence. By converting an issue of Federalism into an individual right, the court has inadvertently provided legal standing to any and all citizens who allege to be aggrieved / oppressed / offended by ANY and ALL displays of religious sensibility. One need only review recent litigation concerning Memorial Crosses honoring the nations fallen warriors, the Solomonic apportionment of "One Menorah, One Manger and two Santa Clauses" (not far from the truth, BTW) in a "Holiday Display", etc etc etc.

Had the court accepted Justice Thomas' rather accurate historical view of the Establishment Clause, such standing would not exist and the nation would be spared this never ending litigation putatively intended to alleviate, if not eliminate the horrors experienced by our more sensitive and umbrageous citizens when casually observing traditional expressions of piety, faith and cultural values.

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gabe
on November 29, 2019 at 19:21:41 pm

We could also be spared all this by you just not putting up crosses and holidays decorations on government buildings and in the public square. Keep your religion on/inside private buildings and homes. If you taught secular ethics and the bill of rights, rather than SJW pronouns, in school we'd be a more rights-loving and law-abiding community and you wouldn't feel the need to convert us to your religion in hopes we act civil.

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Moses Mayomanides
on November 30, 2019 at 10:29:42 am

Gabe, in addressing "these people" rationally (which is what you did) rather than derisively (which is what I insist on doing) you invariably induce in them a psychologically-mutated variation of the principle of res ipsa loquitur by which to raise a rational defense is to imply guilt.

As Macaulay's Horatius shows there are two reasons one does not debate the enemy at bridge: he's the enemy and he's at the gate.

Ignore them at your peril. Mock them, deride them, parody or satirize them. But for God's sake (take that, Mayomanides, another religious micro-aggression) never seek to argue with a DemocRat and his talking points.

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Pukka Luftmensch
on November 30, 2019 at 10:48:40 am

I look forward to reading Dr. West's book. While, after much study, I don't necessarily accept (at least yet) the clauses are "two different ways of saying the same thing," logic does dictate there is something about the two that are meaningfully connected in such a way that they can't separated. Having one clause incorporated but not the other would count as such a "separation" that ought perhaps by necessity would be resisted.

Interestingly, Philip Hamburger who is totally against the EC incorporating pointed out what I'm about to note. But he also is against incorporation in general:

Like a Siamese twin who share the heart the word "religion" is only mentioned once in the First Amendment. The Free Exercise Clause uses "thereof" to relate back to "religion" in the Establishment Clause. Prof. Hamburger didn't use the Siamese twin analogy (I think you can attribute that to me), but rather invoked Wittgenstein.

Hamburger's objection was that there were some cases and advocates who were suggesting that the term "religion" ought to have one meaning for FEC purposes and another meaning for EC purposes. He was objecting to the logical impossibility of such a proposition. I think there's something there that suggests to two clauses rise and fall together for incorporation purposes.

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Jonathan Rowe
on November 30, 2019 at 11:22:07 am

Pukka:

good to see you back.

And yep! They are at the gate, or most recently on the bridge wielding knives. Some know how to respond.

And all their calls for fairness at the Courthouse amount to nothing when one understands that their Sharia system of Law constitutionally penalizes both nor Muslims and women. There is that, after all and it has persisted for 1500 years.

So go cry in your hookah rooms!

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gabe
on November 30, 2019 at 12:04:47 pm

If you put more liberty-loving justices on the court like Douglas, Scalia, Gorsuch, and Kavanaugh who defend and enforce the bill of rights, you wouldn't have to worry about Sharia ever taking hold in this country--and you wouldn't have to force us to be Christian so we didn't default to Islam.

Muslims aren't weakening the bill of rights, like the second amendment, democrats and progressives are. All the dissenters in Heller had in common that they were non-muslims who went to non-muslim colleges and who are members of non-muslim lawyer groups like the ABA.

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Rocky Trumper III
on November 30, 2019 at 20:41:49 pm

A slight edit, if you please:

"Muslims aren’t [YET] weakening the bill of rights, like the second amendment, democrats and progressives are. All the dissenters in Heller had in common that they were non-muslims who went to non-muslim colleges and who are members of non-muslim lawyer groups like the ABA."

What you say is quite correct; moreso, with my simple edit.
It is the Proggies that have been, are, and will continue to be the enemies of many of our l;iberties.

However, to paraphrase John Lennon:

"Just give the [Mohammedans] a chance. That's all we are saying......"

These "lovers of liberty" have most recently initiated a campaign to make criticism of Mohammedanism a crime. This is consistent with their centuries old ambition to eliminate any and all doctrines / belief systems that do not conform to the Koran / Sharia.

Then again, this legal tactic is, I suppose, preferable to simply stabbing random citizens as they stroll along a public thoroughfare. This action, however, is consistent with their centuries old practice of "terrorizing" the dhimmi until they either convert or submit.

How is that for denying liberty?

And BTW, I am not forcing anyone to be Christian; nor is my willingness to calmly observe displays of faith by Christians, Jews, Buddhists an effort to compel anyone to accept one of those belief systems as such displays neither "pick my pockets nor break my legs." Someone famous said that and he was referring to religious variations.

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gabe
on November 30, 2019 at 21:29:54 pm

In talking about "these people" who use the courts to attack religion I am not talking about Islam per se. Rather, I am talking about the political exponents of secular Progressivism and aggressive atheism, the radical Left in America, which abuses the judicial system so as to destroy the institutional strength of religious faith so as to undermine the nation, weaken the culture and enhance their political power. Insofar as US politicians who profess to follow Islam (such as Ilhan Omar and Rashida Tlaib) have allied themselves with those radical Left, secular and atheistic political forces they do their religious faith no service. Catholic politicians such as Biden and Pelosi do similar harm to their professed faith by allying with advocates of unrestricted abortion. As with Omar and Tlaib, one suspects that they use (abuse) their religion solely for reasons of political expediency. Scotus has both enabled and fostered this movement by making a "train wreck" out of the Establishment Clause, the Due Process Clause and the Equal Protection Clause.

The separate effort to abuse the judiciary in order to impose sharia is a whole other matter, a matter which is not the subject of the essay and to which none of my comments on that essay is addressed.

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Pukka Luftmensch
on December 01, 2019 at 10:12:03 am

And then there is this:

https://www.gatestoneinstitute.org/15228/pope-francis-imam-al-tayeb

wherein Pope Francis once again displays his Leftist bona fides:

"Pope Francis, 'The Song of Roland' and Imam Al-Tayeb

by Giulio Meotti
December 1, 2019 at 5:00 am
Send

"I have a family of Christians who do not want to convert, what do we do with them?", a jihadist in Iraq asked his superior.

According a new report by Aid to the Church in Need, "over 245 million Christians [are] living in places where they experience high levels of persecution," 4,305 Christians were killed for their faith from 2017 to 2019, and 1,847 churches and other Christian buildings were attacked in the same period. The report states that "within a generation, Iraq's Christian population has shrunk by more than 90 percent."

Christians in Burkina Faso are now being forced to "flee, convert or die".... British Baroness Cox recently discovered, on a fact-finding mission to Nigeria, mass murders of Christians by Muslim extremists (more than 1,000 Christians killed since January and more than 6,000 since 2015).

"The astonishing ignorance of these basic teachings on the part of Pope Francis and his advisors doesn't make for a more harmonious world: it makes for a more dangerous one. Those who buy into their fantasy view... are in for a rude surprise when they encounter the real thing". — William Kilpatrick, Crisis, September 25, 2019.

In Cyprus, Turks have converted 78 churches into mosques. Turkey's President Tayyip Erdogan himself has called to convert -- again -- Hagia Sophia into a mosque.

The West and its religious leaders need to stop repenting and face reality. For the Pope, the head of more than a billion Catholics, it means using his dialogue with Islam to challenge it and ask its leaders, such as Al-Tayeb, to stop threatening Christians. Now, please, in 2019, not in 1209, at the time of the "Song of Roland"

And we are being asked to refrain from a display of Crosses honoring our war dead?

Unknowingly (one hopes) SCOTUS has enabled these grievance mongers to pursue their goal of vitiating a once viable and sustaining cultural and religious tradition. Now anyone claiming the "honor" of victim may now have standing to sue and limit the free expression of the other.

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gabe
on December 01, 2019 at 11:52:19 am

William Kirkpatrick's writing in Crisis and at Turningpointproject.com is spot on about religious persecution, destruction, intimidation, imprisonment and murder. These are rampant across the globe. They're being commited by Muslims against Christians in the Sudan and Turkey and throughout the Middle East and by the Chinese Communist Party against Christians, Muslims and Tibetan Buddhists. Red China's Uyghurs are now residents of the world's largest concentration camp since Hitler's internment camps and Stalin's death camps (run by a bureaucracy called the "Gulag".) If the religious-hating Dem's continue their course and have their way we too will have our "Ministry of Love" one day.

William Kirkpatrick writes forcefully about this crisis in Crisis and at Turningpointproject.com. Kirkpatrick's is an understatement, “The astonishing ignorance ... on the part of Pope Francis and his advisors doesn’t make for a more harmonious world: it makes for a more dangerous one."

President Trump, just as he is the strongest, best and most effective American friend Jewry ever had, is also Christianity's best defender and the world's strongest protector of religious freedom everywhere. In Congress, before the courts and in the culture President Trump and Attorney General Barr are the most eloquent advocates since Calvin Coolidge (what a great man) of the indispensability in America of religious faith and religious freedom and for the active involvement in our society of religious faith and religious institutions. See e.g., AG Barr's speech at the University of Notre Dame School of Law (formerly Catholic:)
https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-law-school-and-de-nicola-center-ethics

The Faux-Pope recites platitudes about inclusiveness and diversity, wrings his hands about climate change and, as a tip of his Mitre to pantheism, sanctions a silly synod about Mother Earth.

Trump legally threatens and confronts the enemies of organized religion, publicly promotes faith and aggressively defends the faithful. Scotus does little but compound the constitutional problem, confuse the law prof's and frighten the faithful. Justice Thomas (the greatest Justice since the Great Justice) dissents from the needless chaos, citing the constitution's clarity.

DemocRats love Pope Francis; they hate Trump and Thomas, Hmmm! Wonder why.

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Pukka Luftmensch
on December 01, 2019 at 14:39:43 pm

Yes, we are one of the few countries on earth with freedom of religion, where all religious people are equal under the law and no one has to practice anything any time anywhere. But that doesn't mean that the religious majority should alienate other religions or atheists just because they can say, "what's the big deal? you're still treating equally under the law".

You wouldn't say it's OK to have symbols of white supremacy, or patriarchy, or hetero-normativity everywhere just because the races, sexes, and sexual orientations are treated equally under the law.

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Charleston Carolina
on December 01, 2019 at 18:51:17 pm

If this be logic or reason or pass for thinking then, truly, we are lost in thought.

Perhaps, for Christ's sake and ours it is time to bring on the "symbols of... hetero-normativity." But in the name of Equal Protection of the Law and in deference to the Black-robed wisdom of Engel vs. Vitale, Lawrence vs. Texas and Obergefell vs. Hodges, for every display of a cross or a creche and for every public image of Rodin's "The Kiss" and for every civic institution's reproduction of Norman Rockwell's "The Marriage License" let's inscribe in granite on a public building, "There Is No God," and let's build a bronze erection to sodomy or inscribe a paean to gay marriage in the town square.

And, of course, there's the diversity goal to consider, so we must account in our public statues and museum displays for racial and sexual inclusiveness, and we must compensate for the over-emphasis in our shameful past on white hetero-normative privilege.

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Pukka Luftmensch
on December 02, 2019 at 09:06:48 am

Charleston apparently believes, or wants us to believe that the mere existence of a religion, in this instance, Christianity serves ONLY to "alienate" others and other religions.

1) Are we so childish and insecure that the simple acknowledgement of difference is to be deemed painful and oppressive?
2) Is the fact of diverse religious views not indicative of the "diversity" that these woke weaklings so incessantly exalt?
3) Are we to accept the (intentionally) false premise that equates white supremacy with religious sensibilities;?
4) And are we to dismiss the FACT that others ARE TREATED EQUALLY UNDER THE LAW? - simply because - well because - FEELINGS are being hurt?
Good Gawd, man, my 3 & 4 years old grandchildren exhibit greater maturity and understanding of life's little disappointment than the *MAL-educated* woke self described victims of the age.

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gabe
on December 02, 2019 at 13:32:21 pm

Professor Rogers continually writes to preserve British impositions against the American civic proposition, which is stated in the U.S. Preamble.

The USA did not exist as a global nation before 9 of 13 former British colonies ratified the U.S. Constitution predicated on its U.S. Preamble on June 21, 1788. At the time, my state, Louisiana, was a former French colony under Spanish rule with a more inclusive citizens’ joy of life. For example, black slaves could marry and form families. See https://www.blackpast.org/african-american-history/louisianas-code-noir-1724/. To this day, civic integrity in Louisiana is a national treasure in so far as it favors statutory justice according to the U.S. Preamble rather than Blackstone common law.

Rogers, intentionally or not, writes to preserve colonial-American British thinking:
“The Establishment Clause serves two purposes: it both prohibits Congress from Establishing a religion but it also prohibits Congress from meddling with state religious establishments.

This is clear from the otherwise curious wording of the Clause, which states, “Congress shall make no law respecting an establishment of religion . . .” If the only purpose of the Clause were to prohibit Congress from adopting a national religious establishment, there is more direct language that would have accomplished this. Something like, “Congress shall not establish a religion.” Sweet and simple.”

Rogers overlooks the essential point of U.S. Amendment XIV.1, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

The literal effect is that no state may impose religion on its citizens. This 1868 provision is not new to the wording of the 1791 Amendment I establishment clause. Rogers’ interpretation is negated by both Amendment 1 and Amendment XIV. And each amendment affirms the U.S. Preamble.

Also, Rogers’ constraint ". . . religious establishments that existed at the time in the states” is not consistent with the U.S. Preamble, which is a proposition for the continuum of living citizens. See "ourselves and our Posterity".

The U.S. Preamble proposes 5 disciplines of by and for voluntary citizens---integrity, justice, peace, strength, and prosperity---in order to secure responsible human liberty to living citizens. The U.S. Preamble does not specify standards of discipline, leaving it to the continuum of living citizens to develop integrity with the unfolding of the universe. In other words, the entity We the People of the United States does not brook imposed human-construct of whatever-God-is.

Religion is a natural human hope some people adopt in particular ways against the uncertainties of death. Some hold particular hopes---salvation of a soul, or return to God, or attainment of integrity in life. No one knows anyone’s afterdeath. But no one has the prerogative to impose fear of death on fellow citizens.

The best outcome of the current angst over “freedom of religion” may be to amend the 1st Amendment so as to promote human integrity rather than institutionalize religion. That way philosophy, non-theism, and other approaches to consider the unknown would be held on par with religion in all its forms. Either way, let’s codify encouragement to develop and practice civic integrity instead of colonial-British tradition.

Rogers seems too bold in “This structural protection cannot be incorporated against the states by the Fourteenth Amendment. It makes no logical sense to do so given the structural guarantee protects state governments from national-level intrusion, not individuals. It simply makes no sense.”

The U.S. Preamble is a proposition for individuals to voluntarily aid 5 public disciplines in order to secure responsible human liberty. Religion is excluded from the 5 disciplines because pursuit of religion is an individual choice no fellow citizen can question let alone dispute, unless the believer breaks a law. Law has no obligation to consider the offender’s religious beliefs.

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Phillip Beaver
on December 02, 2019 at 13:43:15 pm

Dont Alienate, I feel you also speak for me. I tried to be a Christian for 5 decades and then realized that whatever-God-is or may be may not like my work. At that very moment, I dropped out of religion, but it took me another seven to ten years to overcome my indoctrination.

Now, a quarter-century later, I feel I can say to every civic Christian: Your hopes for your afterdeath are OK with me. To the un-civic Christian I say, "Please consider the proposition that is offered in the U.S. Preamble. It offers fellow citizens indivdiual happiness with civic integrity."

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Phillip Beaver
on December 02, 2019 at 13:57:24 pm

Pukka Luftmensch, speaking of unanimously accepting findings, the First Congress, 1789-1793, imposed on the U.S. Preamble the idea that it is secular, at best meaning arelgious. However, the U.S. Preamble is neutral to religion . . . and gender, and race, and national origins.

And the U.S. Preamble does not include James Madison or other erroneous politicians in the standards by which fellow citizens strive for 5 public disciplines so as to secure responsible human liberty "to ourselves and our Posterity." All the dead thinkers are excluded from America's quest for civic integrity except to the extent that we may know and avoid their erroneous ideas.

Living citizens have the opportunity to discover and practice civic integrity.

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Phillip Beaver
on December 02, 2019 at 14:09:00 pm

Leonard W. Levy in his book, "The Establishment Clause," (1986) asserts that it is unconsitutional.

I think the fact that the 5 public disciplines listed in the U.S. Preamble to secure responsible human liberty does not include religion affirms Levy's claim.

The preamble's proposition seems consistent with the smattering of American history I know before June 21, 1788. It is attributed to the Committee of Style, who received a draft with no proposition on September 8, 1787 and presented their product on September 12. On September 17, 16 of 55 delegates did not sign.

Some delegates did not like the U.S. Preamble's neturality to religion and promotion of the people above the states in regard to holding the nation accountable.

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Phillip Beaver
on December 02, 2019 at 14:24:59 pm

The U.S. has "freedom of religion" but promotes freedom of theism, in particular Christianity, mostly Protestantism, but officially Judeo-Christianity under a Supreme Court comprised of 3 Jews and 6 Catholics or reformed Catholic.

What human beings demand is integrity. The U.S. Preamble proposes integrity, but so far, an apathetic people have allowed the political regimes to impose a sequence of factional-American objection to the Church of England (reformed Catholicism), factional-American Protestantism, and Judeo-Christianity. (Is that the oxymoron it seems?)

The entity We the Poeple of the United States proposes integrity rather than the imposition of religion.

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Phillip Beaver
on December 02, 2019 at 16:07:51 pm

A few recent law review articles have attempted to recover incorporation of the Establishment Clause by arguing the Fourteenth Amendment responded to state religious impositions in southern states prior to the Civil War (for example, here). Problems, however, bedevil these attempts. First, this conflates impositions on religious free exercise—which is an individual right—with religious establishments, which need not impose on individual rights.

Not following this: Rogers can’t elaborate at length about the significance of the phrase “Congress shall make no law respecting” the Establishment of Religion, and then declare that this significance doesn’t also apply the Free Exercise clause of the same sentence. If this introductory phrase implies that the Establishment Clause cannot be incorporated, then it implies that the Free Exercise cannot be incorporated—and states have the right to punish people for practicing unpopular faiths. Alternatively, if we conclude that the Free Exercise clause can be incorporated notwithstanding the “Congress shall make no law” language, then we can draw the same conclusion about the Establishment Clause.

I can understand policy reasons for distinguishing between the incorporation of Establishment and incorporation of Free Exercise. But those policy reasons do not—and cannot—rely on the “Congress shall make no law” language.

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nobody.really
on December 02, 2019 at 17:14:12 pm

Stop the clock, note the year, the hour and the minute.
I almost agree with Nobody!

Which means that he and I are both almost right, for once.

And the reason is that the 14th Amendment did not incorporate any of the Bill of Rights incrementally through the (ever-shifting) Due Process Clause, as the SC has wrongly held, but only selectively and partially through the P or I Clause, which the SC gutted in the 19th century.

So, rightly understood, the constitution provides no incorporation of any of the 1st 8 Amendments through the Due Process Clause and we await proper determination of whether certain of those enumerated rights might be considered as the P or I of citizens safeguarded from state infringement.

Nobody and I disagree, however, on the significance for incorporation of the constitution's "Congress shall make no law" language. The essayist is also wrong in that regard. The "no law" language is immaterial to the judicial determination of what enumerated rights may be incorporated and made applicable to the states. For certain we can say that, in the proper case, the Court would hold that all of the speech, assembly, association, petition and religious rights and prohibitions of the First Amendment and the Second Amendment's gun right/prohibition are among the P or I of US citizens (not illegals and not everyone who was born here.) Justice Thomas' concurrence in McDonald so concluded as to the 2d Am.

Nobody and I also disagree that without DPL incorporation the "states (would) have the right to punish people for practicing unpopular faiths." As I said, P or I incorporation would prohibit that.

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Pukka Luftmensch
on December 02, 2019 at 18:15:06 pm

Hm.

Do citizens have a privilege or immunity to practice a minority religion? Clearly that was not true in the the 1600s, when Congregationalist Massachusetts would subject Quaker missionaries to increasing harsh tortures. So this norm would have had to arise at some later point.

As far as I could determine, the Privileges and Immensities clause functions a lot like the Equal Protection clause: States may not discriminate against out-of-staters in the application of their laws. But the clause does not prohibit a state from subjecting domestic Quakers and imported Quakers to uniformly harsh treatment. (And, indeed, it's not clear that a domestic Quaker could object to being subject to worse treatment than the imported Quaker. The clause does not protect a state's citizen from the state; it merely protects the foreign traveler from the state.)

I don't mean to say that I object to Luftmensch's view of the Privileges and Immensities clause; I simply don't know of judicial support for it.

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nobody.really
on December 02, 2019 at 18:28:47 pm

And honestly, Luftmensch, while you can be cantankerous at times, I don't think it's fair to say that you almost agree with nobody. Why, surely your mom has agreed with you from time to time. Not saying a LOT of the time, mind you, but every now and then. Likewise, many dogs have a conciliatory demeanor; perhaps you own one? If not, maybe you'd want to pick one up?

In any event: Chin up, chap. Things can't be as bad as all that.

(That said, I appear to be disagreeing with you on this point. So ... maybe there's more to your statement than I appreciate....)

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nobody.really
on December 03, 2019 at 07:39:11 am

Whatever may have been the original understanding of the First Amendment as to nonestablishment, the critical question is whether the Fourteenth Amendment incorporated the same prohibition against the states. This book does not address this question--and the evidence overwhelmingly favors the conclusion that the Fourteenth Amendment was not understood to incorporate the nonestbalishment principle against the states. https://www.lawliberty.org/2019/02/14/the-court-should-tear-down-everson-not-the-maryland-cross/

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David Upham
on December 03, 2019 at 07:42:30 am

Please see this article I posted here on the original meaning of the 14th. https://www.lawliberty.org/2019/02/14/the-court-should-tear-down-everson-not-the-maryland-cross/

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David Upham
on December 03, 2019 at 11:12:46 am

nobody:

Luvv'd it! - that is the Privileges and *Immensities* Clause. (I assume you intended it).
To my mind, if properly construed, the P&I clause does indeed have "immense" implications for civil BUT "ordered" liberty.

In this, I agree with Pukka. SCOTUS has completely vitiated the clause and it's protections.

As far as this: "As far as I could determine, the Privileges and Immensities clause functions a lot like the Equal Protection clause"
Yes, it may be construed as a "lot like" BUT it is not interchangeable and then again, Which P&I clause? Art IV or XIV? or in combination?
I think to more fully grasp the P&I, one must also recognize certain issues of Federalism. and it is in this regard, i.e., 'incorporation", that SCOTUS has blurred the whole debate and effectively deleted P&I from COTUS by replacing it (and FEDERALISM) with the EP clause.

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gabe
on December 03, 2019 at 11:23:00 am

BTW: citing religious discrimination in the 1600's (but conceding a change at a later date) is quite *clever*, my friend.
Clearly, it DID change. One need only recall Jefferson's comment as to "picking my pocket nor breaking my bones" regarding the effects or import of religious diversity. This was a fairly well shared opinion SOMETIME after the 1600's (ha!) and at the time of the Ratification, was it not?

Are you asserting that at the time of COTUS acceptance, widespread de jure discrimination was enforced?
I think not.

A tad bit more complicated than you would have us believe.

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gabe
on December 03, 2019 at 12:52:54 pm

Eh. Thanks for the head's up; that was thoughtful.

As I've grumbled in the past, I've been banned from First Things. Something about my commentary does not jibe with their editorial vision, I guess. Such is editorial discretion and freedom of the press.

See ya round the web.

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nobody.really
on December 03, 2019 at 13:03:40 pm

Here is your problem, written by yourself, from the article you wrote:

the Amendment modified the Permoli doctrine only in the two defined ways later identified by the Supreme Court: equality before the law, regardless of creed, and freedom of religious speech

The ratifiers of the 14th wrote the slippery slope right there that the ff's didn't make clear; thus, they screwed everything at the beginning.

Once every pagan, demonic creed was granted freedom of religious speech by Bingham, Taylor, and the other losers, it was only a matter of time that the rights of states and their religious establishments were toast.

By not enumerating Christ into the legal structure of the founding documents, the founding fathers destroyed the nation at the start and left no authority except wicked sinners.

How did that work out for you?

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Oft
on December 03, 2019 at 13:13:28 pm

No slippery slope--they were quite aware that it gave general freedom of opinion, including freedom of non-Christian religious speech. But none of this implied the equality of all creeds, let alone even a necessity to tolerate all anti-religious speech. Utterances that attacked public morals--including some forms of blasphemy--were offenses at common law and were not part of the protected freedoms. Rather than a slope it was a foundation--a foundation attacked by progressive jurisprudence.

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David Upham
on December 03, 2019 at 13:56:13 pm

"By not enumerating Christ into the legal structure of the founding documents, the founding fathers destroyed the nation at the start and left no authority except wicked sinners."

"Christ" is a title some people substitute as a name, Jesus. The delegates to the 1787 convention debated your point but were turned off by Bible passages that may have misquoted Jesus. For example, the acusations of hate by the Abostle John in John 15:18-23. I place my trust and commitment in the-liberal-truth, which I do not know. For all I know, Jesus is God, as my dear wife trusts.

My wife tells me I am a better person since I dropped religious beliefs in order to respresent the-literal-truth. With that posture, I firmly stand by her beliefs for her and my trust and commitment for me.

I appreciate every civic citizens hopes and dreams for his or her afterdeath, whether it be resurrection of the body to heaven, salvation of a soul, reincarnation, rejoining a world soul, or what. However, I consider your implication that the-literal-truth is a wicked authority as rare arrogance.

I don't know but suspect that whatever-God-is strongly opposes your opinion.

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Phillip Beaver
on December 03, 2019 at 18:24:59 pm

Agreed - and I would add that it is not a Privilege and Immunity of either US or State citizens to make such utterances.

I would, only partly jocularly, that SCOTUS' "incorporation" resulted in establishing legal "standing' as a P&I.

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gabe
on December 03, 2019 at 18:28:31 pm

Pukka:

Once again, I am sorry to hear this.

Agreed about nobody and First Things vs Get Thee Behind Me thesis. I would be content to have both nobody and you walk beside me as I thoroughly enjoy all the banter we engage in.

And I think it is "absotively" wrong to ban you from L&L.

take care, my friend

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gabe
on December 03, 2019 at 22:39:33 pm

It happened and it wasn't because of liberalism and immoral democrats. Today is the proof; it happened because Christ isn't there. Had the leftists wrote Him out of the DOI, AOC, Bill of Rights and the Constitution, there would be no excuse for all the lawlessness.

Instead, the ff's prayed to Christ for help, protection and guidance, then spurned Him as the righteous foundation of the republic. Now, it's a cesspool of lawlessness, with no eternal standard to guide the nation, except the wayward impulse of the people.

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Oft
on December 04, 2019 at 10:48:40 am

Dear PL et.al.,
I click on my notices about Upham’s essay hoping for subjective responses from which I can learn. Lately, I have been inundated by nanny-state, immature whining typical of artificially intelligent anonymity and would like to share my experience with this blog.
I am a chemical engineer with exposure to perhaps 40 ethnicities and perhaps 4 decades ago started reading, writing, meeting, and talking to discover 1) with so many wonderful people in the world, why aren’t most people civic or at least civil or perhaps legal and 2) with such a wonderful U.S. Preamble, why are so many Americans in ideological conflict? I could not have been that expressive then.
Four decades later, I interpret the U.S. Preamble as a proposition to individuals to work for 5 public disciplines in order to approve-of and encourage responsible human liberty, as discovered by the-objective-truth. The-objective-truth is understanding of the ineluctable evidence, which improves as instruments of perception are refined. Eventually, the-objective-truth may approach the-literal-truth.
My civic learning increased exponentially when in 2014 I started hosting local public library meetings and then founded the Louisiana corporation, A Civic People of the United States (2015). My civil learning step up when I started following titles of Law and Liberty blog posts and thinking about each essay. My posts started, it seems, on August 16, 2016, and number 193. (Search “Phil Beaver” on the blog.)
I have some experience with blogs and understand they have rules, but mainly caution myself not to express personal angst or enmity in sharing my civic opinion. A couple times, I doubted acceptability of my post and reposted with fewer ideas. Eventually, I learned there is a diverse time lag in publication of a submittal. Therefore, my re-posts have dropped, I imagine, close to none.
Contrary from customary teaching, I perceive that “writing for the audience” means expressing what you mean as plainly and un-aggressively as your ability allows and leaving rejection of your opinion to the reader. Some people ridicule my posts and a few perhaps observed that arrogance can backfire: I’ve experienced that reality. I am grateful that a couple people expressed surprise that my ideas are not debated. I especially hope my interpretation of the U.S. Preamble’s proposition inspires fellow citizens to develop their individual interpretations for their civic living. What matters to me is the exponential civic and civil learning I glean from the few essays I respond to. I wish I could dedicate more of my life to this trove of information, insight, heartfelt opinion, opposition to my ideas, and overall civic excellence.
I regret that this message became so long, so I will stop short of the rest of the story. I hope I shared my path to accepting and appreciating the communications excellence I experienced in this blog: Here, I am free to gain as much as my abilities and intentions support my hopes.

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Phillip Beaver
on December 04, 2019 at 11:51:48 am

 The delegates to the 1787 convention debated your point but were turned off by Bible passages that may have misquoted Jesus

Christ did not allow His word to be compromised for His people. Best thing for you to do now is understand you are a sinner like everyone else; that's why you die. Christ was sinless so He could be your sin bearer. Trust in Him, for everything, and not answer for your sins, when u die.

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Oft
on December 04, 2019 at 19:15:29 pm

To Oft again:

You express your opinion that I am a sinner on the certainty that I will die and without knowledge of even one actually-real soul in its person’s afterdeath.

According to Merriam-Webster, a sin is estrangement from some doctrine, the last item in the list being, “a vitiated state of human nature in which the self is estranged from God.” In my seventh decade I realized that during my life I develop trust-in and commitment-to whatever-God-is rather than a reasonable doctrine.

Since I do not know the-literal-truth, your Christ doctrine is alright with me for you. Also, you can erroneously claim I am a sinner by being humble toward whatever-God-is.

However, by not observing the U.S. Preamble’s proposition as you interpret it for your life, you are a dissident of We the People of the United States. Examine your interpretation of the U.S. Preamble’s proposition if you want the chance to reform before you die.

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Phillip Beaver
on December 04, 2019 at 19:46:43 pm

Sorry: In my post earlier today, "I click on my notices about Upham’s essay" should read "Rogers' essay."

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Phillip Beaver
on December 05, 2019 at 00:19:44 am

How about something different?

Rather than reading the posted essay and expressing an opinion on it based on my own views, or responding to a specific comment, I should like to try and construct a premise by assuming that all of the opinions expressed here have some validity. In other words, I would like to see what happens when one tries to resolve what appears to be differing opinions. As some of the opinions are in direct conflict, some of what follows is unavoidably forced and contrived, but I am not trying to write a law review article or polemic. This is a discursion that contemplates what a an opinion drafted by a committee of commenters here might look like. Here goes:

The Constitution did not simply provide that Congress shall not establish a religion. Instead, the drafters massaged language that expressed the principle that no citizen should have a disability placed on his civic activities on account of religion. (Another way of looking at this is that Congress could not create classes of citizenship based on religion) Since this statement is subject, like all generalizations, to hard cases and special pleadings,(such as the prerogative of states to pass religious laws) the Congress left the phrase vague. Thus, while Congress could not "establish" religions, there was no great discomfort over things like national days of prayer, military chaplains, Federal holidays coinciding with Christian religious holidays, etc. Christians, Muslims, atheists, Buddhists, etc. could practice civic activities unvexed. (As an aside, this seems to be consistent with the Supreme Court's decision in Masterpiece Cakeshop. The Court did not decide that jack Phillips could refuse to provide cakes for gay weddings as a matter of free exercise, but rather that the state could not impair his ability to engage in the civic activity of operating a business, or deprive him of due process, because members of a state board were hostile to his religious beliefs.) There were no slippery slopes, and the virtues that were thought to inhere in Judeo-Christian tradition were allowed to serve as a foundation for civic morality. This worked well, because what the founders were prohibiting was a impairment of the right to go about one's business unimpaired by official burdens imposed on behalf of a particular creed.

Then something changed. What changed was the perception that what the establishment cause prohibited were not only practical impairments, but also psychological ones. Thus, a new class of complaints arose because government recognition of religion made people feel that they were unable to fully participate as citizens; that, for example that they could not get an impartial hearing in a courtroom that contained indicia of religious heritage. There was a yin/yang that emerged regarding the concept of privilege. Religious accommodation of a major religion was a symbol of a religious privilege that necessarily meant that those who did not confess the popular beliefs were at a disadvantage, if only symbolic. Now you have the makings of a controversy, complete with slippery slopes, shifting definitions and political maneuvering. The slippery slope is from the practical to the psychological, and from the traditional to the novel. Now the Judeo-Christian values assumed by the founders would not be questioned as to whether they were worthy values, but rather if they were religious. A radical notion emerged that the establishment clause required legislation to be areligious, not only in application but in inception. This is the notion that evades incorporation by the fourteenth amendment. The more traditional notion, that the establishment clause forbade imposing practical burdens due to religious belief, thus falling under the purview of privileges and immunities, did not need incorporation. If one looks at the former view, the establishment clause and free exercise clause are distinct; in the latter perspective, they are two statements of the same principle.

Have at it.

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z9z99
on December 05, 2019 at 11:08:15 am

First, civic objection to the premise: “Now the Judeo-Christian values assumed by the founders would not be questioned as to whether they were worthy values, but rather if they were religious.”

It seems the term Judeo-Christian was not debated by “the founders.” “Theologian and author Arthur A. Cohen, in The Myth of the Judeo-Christian Tradition, [1969] questioned the theological validity of the Judeo-Christian concept and suggested that it was essentially an invention of American politics.”; https://en.wikipedia.org/wiki/Judeo-Christian. I certainly have no desire for the Judeo-Christianity doctrine, because I trust-in and commit to whatever-God-is, which I do not know.

Second, your idea of an open discussion by the people interested enough to comment on Professor Rogers’ essay is wonderful. I suggest lessening the constraints by opening to possibilities that spring from the September 17, 1787 signers of the U.S. Constitution more than both the spirit of 1776’s rebellion against American-colonial taxation to pay England’s French-war debts and Congress’s 1791 Bill of Rights to restore colonial-English tradition to erroneously override the U.S. Preamble.

Thus, your commenters apply to themselves the phrase “Liberty to ourselves and our Posterity.” As such, the issues Professor Rogers raises may be addressed as though we, fellow citizens, may write a U.S. Constitution that provides more justice than “the founders” may have imagined for us. The consequence may be ideas that accommodate each of our civic motivations and inspirations, whether religion is a personal pursuit or not.

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Phillip Beaver
on December 05, 2019 at 17:25:15 pm

Z:

Nice take/

May I edit:

"A radical notion emerged that the establishment clause required legislation to be areligious, not only in application but in inception." Strike inception - as one option; or better still ADD "and individual perception.

This appears consistent with your valid assertion that "psychology" now matters as much as intent and / or practical considerations.

AND, the judicial recognition of psychological perceptions as a litigable impairment was made possible by ( a grant from our sponsors - ha!) the Black Robes inadvertent granting of standing consequent to the incorporation of the Establishment and FE Clause - which also was redefined to imply a "freedom" to not be engaged by any religious expression.

I also agree that such incorporation was unnecessary as P*I (at least my understanding of same) was sufficient to cover any obvious / egregious expression of such religious sensibilities. Of course, the problem becomes intractable and not susceptible to resolution when individual perception is used as a criterion for legal sufficiency.

And the "radical" notion of which you speak may, and has been (attempted to) extend(ed) to preclude the provision of Fire and other emergency services to Houses of Worship. Now how radical is that?
And what does it say about the Black Robes ability to foresee potential outcomes of their decisions?

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gabe
on December 05, 2019 at 17:27:59 pm

And BTW, Phil:

Although you claim to have given up your religious beliefs, surely, you must still "enjoy" Christmas which is upcoming.
Perhaps, you could ask your wife if she could get you a new pony. This old horse of yours must certainly be getting tired and running out of tricks.

Merry Christmas (or Festivus for you).

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gabe
on December 06, 2019 at 09:47:13 am

To gabe:

I write and converse a lot and often encounter artificial intelligence (AI), sometimes programmed to seem in my age group.

AI whose programmer was not at the leading edge of political jargon mistake phrases like “political correctness” or “identity politics” as products of Alinsky-Marxist organizations (AMO). However, in my youth and community where I was born, “the Christian thing to do” identified a group that intended to inculcate me with their code. I did not know it then, but my psychological leaning was toward the-literal-truth. Today, I consider “the Christian thing to do” as un-civic as “the fear of God.”

Most AI I encounter has the humility to extrapolate from the appreciation I hold for my Louisiana-French-Catholic wife’s spiritual beliefs for her as evidence that I hold the same regard for the AI’s beliefs for it. Alas, again AI is enslaved by its programmer.

A more subtle point is that I pursue the-literal-truth through the ineluctable evidence that humankind works to discover, understand. Humankind refines comprehension by inventing new instruments of perception. The hope is that eventually, the-objective-truth will approach the-literal-truth.

A couple observations fall out of this way of thinking. First, a human liar takes no responsibility for civic integrity. Second, humility requires the human adult to admit that his or her God may not be appreciated by whatever-God-is. This civic humility seems to distinguish the Louisiana French Catholic from the Roman Catholic. Third, no human has introduced me to a soul: It seems probably souls are unlikely.

Christianity encourages the disciple to convince humans that they are doomed to an afterdeath in eternal misery unless they accept Christ as their soul’s savior. Some Christians arrogantly reason that ridiculing a civic citizen is effective. It matters not whether the Christian, in life, developed civic integrity: the believer lives for his or her afterdeath. On the other hand, some believers develop both civic integrity and private religious hopes. I know a handful and think they are of the entity We the People of the United States, whether they witness to it or not.

I have so much doubt about proposing that another human’s spiritual hopes are wrong and their soul is doomed that I chose to drop out of Christianity, indeed all religion, in order to pursue personal integrity according to my preferences: I accept that I don’t know what I don’t know and behave accordingly.

If there is such an entity as a soul, I want my wife’s soul to enjoy her hopes: She is the purest, dearest person I ever met, and I now know I was attracted to her for her serene confidence. However, she knows and is not disturbed by my faith in the-literal-truth, even though I do not know much of the-objective-truth. I share that not to invite you to speculate about someone you do not know, but to hint that a person’s soul is theirs, and I have no desire to influence their spiritual hopes. That includes every human being.

I often encounter AI that was programmed by an immature adult or irresponsible institution.

If, to my delight and surprise, we met, I’d offer you a beer as confirmation while I ordered an orange juice, sarsaparilla, or French-roast coffee.

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Phillip Beaver
on December 06, 2019 at 09:49:30 am

Sorry: "works to discover, understand" should be discover and understand.

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Phillip Beaver
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