{"id":11574,"date":"2023-08-30T15:53:24","date_gmt":"2023-08-30T15:53:24","guid":{"rendered":"http:\/\/lonecandle.com\/?p=11574"},"modified":"2023-08-30T15:53:24","modified_gmt":"2023-08-30T15:53:24","slug":"the-supreme-court-is-taking-a-wrecking-ball-to-the-wall-between-church-and-state","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=11574","title":{"rendered":"The Supreme Court is taking a wrecking ball to the wall between church and state"},"content":{"rendered":"\n

\n\n“The establishment clause provides simply that there can be no law \u201crespecting an establishment of religion<\/a>.\u201d It does not explain what an \u201cestablishment of religion\u201d is. Nor does it lay out in any detail when the government can and cannot provide benefits to a religious institution.<\/p>\n\n\n\n

Armed only with this vague text, the Supreme Court has offered several competing explanations for why the establishment clause exists and what it was intended to prevent. At times, the Court has said that it exists to prevent the government from coercing nonbelievers into acts of devotion they find objectionable. At other times, the Court has described the establishment clause as a nod to pluralism \u2014 something that allows many religious traditions to thrive in the United States by forbidding the government from taking sides in religious debates.<\/p>\n\n\n\n

Everson<\/em> was rooted in the first of these two rationales, the belief that the government may not coerce others into religious exercise<\/a>. As Justice Hugo Black wrote in that case, the clause is intended to universalize a Virginia statute, authored by Thomas Jefferson, which provided that \u201cno man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.\u201d<\/p>\n\n\n\n

Everson<\/em> read this prohibition on coerced religious activity expansively to include not just direct use of force against nonbelievers, but also the use of taxes collected from the general public to fund religion. As Black wrote, \u201cindividual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.\u201d”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Fifteen years later, in Engel v. Vitale<\/em><\/a> (1962), Black laid out a different theory of why the establishment clause exists.<\/p>\n\n\n\n

In Engel<\/em>, the Court struck down a school district\u2019s policy of requiring teachers to begin each school day by reciting a prayer authored by the school board. \u201cOne of the greatest dangers to the freedom of the individual to worship in his own way,\u201d Black warned, \u201clay in the Government\u2019s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.\u201d<\/p>\n\n\n\n

The central idea animating Engel<\/em> was that, if the government is allowed to write prayers or otherwise put its seal of approval on particular religious practices, then US politics will inevitably be consumed by religious believers from competing faiths, all lobbying elected officials to make sure that their religion receives the government\u2019s blessing.<\/p>\n\n\n\n

The Court reached this conclusion after considering 16th-century English history, when Parliament approved a Book of Common Prayer that \u201cset out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.\u201d This led to perpetual lobbying, and frequent strife, over just what prayers the government should endorse and which ones it should reject. Powerful religious groups \u201cstruggled among themselves to impress their particular views upon the Government,\u201d while less powerful religious believers literally fled the country \u2014 many of them becoming early American colonists.<\/p>\n\n\n\n

According to Engel<\/em>, the First Amendment was drafted in large part to prevent this kind of strife among religious factions from occurring in the United States. The founding generation, Black wrote, was not willing \u201cto let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box.\u201d<\/p>\n\n\n\n

Thus, while Everson<\/em> read the establishment clause as a shield against the government coercing nonbelievers into participating in religion, Engel<\/em> saw it more as a safeguard for pluralism. The idea behind the later decision was that, for multiple faith traditions to coexist peacefully in the United States, the government had to be hyper-cautious about picking favorites among them.<\/p>\n\n\n\n

 Of course, these two theories of the establishment clause are not mutually exclusive”  
<\/p>\n\n\n\n

…<\/p>\n\n\n\n

” before the Roberts Court started dismantling the establishment clause\u2019s safeguards, the Court recognized two values implicit in this clause: 1) the right to be free from coerced religious activity, and 2) the right to live in a pluralistic society where the government does not favor one person\u2019s religion over the other. The right against coercion extended not just to direct pressure by the state, but also to more subtle forms of pressure such as a public school ceremony that effectively forces a student to choose between participating in a prayer or risking ostracizing themselves from their classmates. Meanwhile, the pluralistic right prevented the government from endorsing a particular religious viewpoint above others.<\/p>\n\n\n\n

All of that went by the wayside, however, in Kennedy v. Bremerton School District<\/em><\/a> (2022).”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Bremerton<\/em> is a mystifying decision, in part because the six Republican-appointed justices in the majority took great liberties with the case\u2019s facts<\/a>. It involved a high school football coach who would pray at the 50-yard line following games \u2014 in full view of students, players, and spectators, and sometimes surrounded by many of them as he was praying. There are photographs of crowds surrounding this coach as he prayed, some of which were included in Justice Sonia Sotomayor\u2019s dissent.<\/p>\n\n\n\n

Yet Justice Neil Gorsuch, who wrote the Court\u2019s opinion, falsely claimed that this coach only wanted to offer a \u201cshort, private, personal prayer.\u201d”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“while the Bremerton<\/em> opinion is not a model of clarity, two lessons can be extracted from it. One is that the ban on government endorsements of religion \u2014 the mechanism the Court used to ensure that a plurality of faiths would thrive in the United States \u2014 is now dead. The other is that, while the Court still recognizes that some forms of government coercion into religious behavior are not allowed, its Republican majority appears eager to narrow the definition of \u201ccoercion.\u201d There may even be five votes for Scalia\u2019s position \u2014 that the government may actively promote religion so long as it does not use force or the threat of penalty to do so.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“One form of coercion that the current Court permits is the government may now take taxes from a nonbeliever \u2014 taxes that the nonbeliever must pay to avoid criminal sanctions \u2014 and use them to fund religious education.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Read together, the Roberts Court\u2019s establishment clause cases suggest that the Court probably will not neutralize this clause altogether. But they have already neutralized many of its modern applications, and they appear likely to endorse government behavior that would not have been tolerated even in the recent past.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/scotus\/2023\/8\/13\/23822822\/supreme-court-establishment-clause-church-state-separation-carson-bremerton<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“The establishment clause provides simply that there can be no law \u201crespecting an establishment of religion.\u201d It does not explain what an \u201cestablishment of religion\u201d is. Nor does it lay out in any detail when the government can and cannot provide benefits to a religious institution.
\nArmed only with this vague text, the Supreme Court has offered several competing explanations for why the establishment clause exists and what it was intended to prevent. At times, the Court has said that it exists to prevent the government from coercing nonbelievers into acts of devotion they find objectionable. At other times, the Court has described the establishment clause as a nod to pluralism \u2014 something that allows many religious traditions to thrive in the United States by forbidding the government from taking sides in religious debates.<\/p>\n

Everson was rooted in the first of these two rationales, the belief that the government may not coerce others into religious exercise. As Justice Hugo Black wrote in that case, the clause is intended to universalize a Virginia statute, authored by Thomas Jefferson, which provided that \u201cno man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.\u201d<\/p>\n

Everson read this prohibition on coerced religious activity expansively to include not just direct use of force against nonbelievers, but also the use of taxes collected from the general public to fund religion. As Black wrote, \u201cindividual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.\u201d”<\/p>\n

…<\/p>\n

“Fifteen years later, in Engel v. Vitale (1962), Black laid out a different theory of why the establishment clause exists.<\/p>\n

In Engel, the Court struck down a school district\u2019s policy of requiring teachers to begin each school day by reciting a prayer authored by the school board. \u201cOne of the greatest dangers to the freedom of the individual to worship in his own way,\u201d Black warned, \u201clay in the Government\u2019s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.\u201d<\/p>\n

The central idea animating Engel was that, if the government is allowed to write prayers or otherwise put its seal of approval on particular religious practices, then US politics will inevitably be consumed by religious believers from competing faiths, all lobbying elected officials to make sure that their religion receives the government\u2019s blessing.<\/p>\n

The Court reached this conclusion after considering 16th-century English history, when Parliament approved a Book of Common Prayer that \u201cset out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.\u201d This led to perpetual lobbying, and frequent strife, over just what prayers the government should endorse and which ones it should reject. Powerful religious groups \u201cstruggled among themselves to impress their particular views upon the Government,\u201d while less powerful religious believers literally fled the country \u2014 many of them becoming early American colonists.<\/p>\n

According to Engel, the First Amendment was drafted in large part to prevent this kind of strife among religious factions from occurring in the United States. The founding generation, Black wrote, was not willing \u201cto let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box.\u201d<\/p>\n

Thus, while Everson read the establishment clause as a shield against the government coercing nonbelievers into participating in religion, Engel saw it more as a safeguard for pluralism. The idea behind the later decision was that, for multiple faith traditions to coexist peacefully in the United States, the government had to be hyper-cautious about picking favorites among them.<\/p>\n

Of course, these two theories of the establishment clause are not mutually exclusive” <\/p>\n

…<\/p>\n

” before the Roberts Court started dismantling the establishment clause\u2019s safeguards, the Court recognized two values implicit in this clause: 1) the right to be free from coerced religious activity, and 2) the right to live in a pluralistic society where the government does not favor one person\u2019s religion over the other. The right against coercion extended not just to direct pressure by the state, but also to more subtle forms of pressure such as a public school ceremony that effectively forces a student to choose between participating in a prayer or risking ostracizing themselves from their classmates. Meanwhile, the pluralistic right prevented the government from endorsing a particular religious viewpoint above others.<\/p>\n

All of that went by the wayside, however, in Kennedy v. Bremerton School District (2022).”<\/p>\n

…<\/p>\n

“Bremerton is a mystifying decision, in part because the six Republican-appointed justices in the majority took great liberties with the case\u2019s facts. It involved a high school football coach who would pray at the 50-yard line following games \u2014 in full view of students, players, and spectators, and sometimes surrounded by many of them as he was praying. There are photographs of crowds surrounding this coach as he prayed, some of which were included in Justice Sonia Sotomayor\u2019s dissent.<\/p>\n

Yet Justice Neil Gorsuch, who wrote the Court\u2019s opinion, falsely claimed that this coach only wanted to offer a \u201cshort, private, personal prayer.\u201d”<\/p>\n

…<\/p>\n

“while the Bremerton opinion is not a model of clarity, two lessons can be extracted from it. One is that the ban on government endorsements of religion \u2014 the mechanism the Court used to ensure that a plurality of faiths would thrive in the United States \u2014 is now dead. The other is that, while the Court still recognizes that some forms of government coercion into religious behavior are not allowed, its Republican majority appears eager to narrow the definition of \u201ccoercion.\u201d There may even be five votes for Scalia\u2019s position \u2014 that the government may actively promote religion so long as it does not use force or the threat of penalty to do so.”<\/p>\n

…<\/p>\n

“One form of coercion that the current Court permits is the government may now take taxes from a nonbeliever \u2014 taxes that the nonbeliever must pay to avoid criminal sanctions \u2014 and use them to fund religious education.”<\/p>\n

…<\/p>\n

“Read together, the Roberts Court\u2019s establishment clause cases suggest that the Court probably will not neutralize this clause altogether. But they have already neutralized many of its modern applications, and they appear likely to endorse government behavior that would not have been tolerated even in the recent past.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[670,671,1736,57,672,528],"class_list":["post-11574","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-church-and-state","tag-establishment-of-religion","tag-first-amendment","tag-religion","tag-separation-of-church-and-state","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/11574","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=11574"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/11574\/revisions"}],"predecessor-version":[{"id":11575,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/11574\/revisions\/11575"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11574"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11574"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11574"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}