Establishment Clause

[Garmel]

The state of Louisiana has required the Ten Commandments to be put in the classrooms. Will it get knocked down? We have a similar law that was knocked down by the SCOTUS in Stone vs Graham. Stone v. Graham - Wikipedia

However, one can make the argument that the current interpretations of the Establishment Clause are wrong in that the Clause was only to keep the feds out of the religion business, not the states. States used to have state churches.

 

[Chop]

What state religion does the act of posting the 10 Commandments establish?

The SCOTUS building has a bas relief of the 10 Commandments on its walls.

The 10 Commandments are one of the foundations of law in the Western World (via the Middle East).

Would everybody feel better if they put an abbreviated copy of Hammurabi's Code, and the Magna Carta, next to the 10 Commandments?

 

[Monahorns]

There is no restriction for states to establish some sort of religion unless explicitly restricted in their state constitution. It is completely a state issue.

 

[Garmel]

There is no restriction for states to establish some sort of religion unless explicitly restricted in their state constitution. It is completely a state issue.

While I agree with you modern interpretations don't follow this logic.

 

[Monahorns]

While I agree with you modern interpretations don't follow this logic.

The Federal Constitution doesn't apply to the States. When the Constitution was ratified there were State churches or States supported one specific Christian denomination. However, some States enacted their own anti-establisment clause in their State constitutions. If a State today has no such clause in their State constitution, then they could say that the "X" church is State supported.

 

[Chop]

Per the 14th Amendment (which, of course, is part of the US Constitution):

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law..." (emphasis added)

If a State were to establish an official state church (some had them), and then require church attendance or tax you to pay for the clerics' salaries, that would deprive its citizens of liberty w/o due process.

Merely having an official State church "on the books", but not requiring you to attend it, or pay taxes to support it, is arguably a very different animal.

 

[Chop]

Aside from Justice Thomas, most jurists would look to jurisprudence on the Incorporation of the Establishment Clause as against the States.

A decent overview:

https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11062&context=ilj

 

[Chop]

If you want to read a deeper and more intellectual argument than what you'll get from Justice Thomas, check out the writings of Ed Meese--a heavy hitter on this and much more...

Ed Meese spent most of the time on the periphery of the radar of most left-leaners in his time, but the smart leftist intellectuals feared him more than just about any other. Bork was another. They really hated and feared those two.

 

[Monahorns]

Per the 14th Amendment (which, of course, is part of the US Constitution):

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law..." (emphasis added)

If a State were to establish an official state church (some had them), and then require church attendance or tax you to pay for the clerics' salaries, that would deprive its citizens of liberty w/o due process.

Merely having an official State church "on the books", but not requiring you to attend it, or pay taxes to support it, is arguably a very different animal.

I agree but I think there are many ways to interpret those words to allow for some level of attendance regulations or tax. I am not saying I want that to happen, but at this point the Constitution has been stretched beyond the point of elasticity.

 

[Chop]

Much of the legal fighting in this area has centered around using public monies to fund religious schools that include dogmatic religious training. The pendulum seems to be swinging towards allowing more of that (public funding of religious institutions), with the theory being it does not establish a state church and people are free to take that $ to whatever religion's school they want to.

If you were completely against it, then wouldn't you want to disallow federal loans and grants from being used at religious colleges such as Holy Cross, Notre Dame, or the ever-dogmatic SMU ...?

 

[Horn6721]

Since the state of Louisana is not using state/taxpayer money to put up copies of the 10 commandments doesn't that weaken legal attempt to oppose?

 

[Mr. Deez]

Aside from Justice Thomas, most jurists would look to jurisprudence on the Incorporation of the Establishment Clause as against the States.

A decent overview:

https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11062&context=ilj

Incorporation is a piece of the substantive due process doctrine. The substantive due process doctrine is ********. (In fact it goes directly against the term "due process. It is an oxymoron.) Therefore, incorporation is ********.

 

[Chop]

Incorporation is a piece of the substantive due process doctrine. The substantive due process doctrine is ********. (In fact it goes directly against the term "due process. It is an oxymoron.) Therefore, incorporation is ********.

Incorporation could also be via the Privileges and Immunities Clause--which explicitly applies to the States. Even Justice Thomas buys into this in some cases.

 

[Chop]

If both Incorporation and the Privileges and Immunities Clause were thrown out the window (the latter being explicitly written into an Amendment to the Constitution), and the Bill of Rights ruled to only apply to protect people from the federal gov't, then any given state could:

- ban all firearms
- ban the freedom of speech
- allow warrantless searches at the whim of police officers
- establish the Morman Church as the state religion
- etc.

It would open the door wide to state-level tyranny.

 

[Mr. Deez]

Incorporation could also be via the Privileges and Immunities Clause--which explicitly applies to the States. Even Justice Thomas buys into this in some cases.

Perhaps, but the Court hasn't found incorporation by the P&I clause. It has always used the due process clause - in part because the argument is weak.

If both Incorporation and the Privileges and Immunities Clause were thrown out the window (the latter being explicitly written into an Amendment to the Constitution), and the Bill of Rights ruled to only apply to protect people from the federal gov't, then any given state could:

- ban all firearms
- ban the freedom of speech
- allow warrantless searches at the whim of police officers
- establish the Morman Church as the state religion
- etc.

It would open the door wide to state-level tyranny.

Yes, I know the implications of dumping the SBD doctrine, but I'll take that over the tyranny of an unaccountable federal court ignoring the rule of law.

 

[Sangre Naranjada]

Yes, I know the implications of dumping the SBD doctrine, but I'll take that over the tyranny of an unaccountable federal court ignoring the rule of law.

So will I.