[Vision2020] Supreme Court on the Establishment Clause

[Pat Kraut]

What happened to all the decistions used before that to say that it was OK
to say prayers before public meetings??


----- Original Message ----- 
From: "Melynda Huskey" <melyndahuskey at earthlink.net>
To: <vision2020 at moscow.com>
Sent: Tuesday, August 16, 2005 4:04 PM
Subject: [Vision2020] Supreme Court on the Establishment Clause


Kai,

In Abington v. Schempp (1963), the Supreme Court held (in an opinion written
by Justice Clark):

"Second, this Court has rejected unequivocally the contention that the
Establishment Clause forbids only governmental preference of one religion
over another. Almost 20 years ago in Everson, supra, at 15, the Court said
that "[n]either a state nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or prefer
one religion over another." And Mr. Justice Jackson, dissenting, agreed:

" 'There is no answer to the proposition . . . that the effect of the
religious freedom Amendment to our Constitution was to take every form of
propagation of religion out of the realm of things which could directly or
indirectly be made public business and thereby be supported in whole or in
part at taxpayers' expense.... This freedom was first in the Bill of Rights
because it was first in the forefathers' minds; it was set forth in absolute
terms, and its strength is its rigidity.' Id., at 26.

"Further, Mr. Justice Rutledge, joined by Justices Frankfurter, Jackson and
Burton, declared:

" 'The [First] Amendment's purpose was not to strike merely at the official
establishment of a single sect, creed or religion, outlawing only a formal
relation such as had prevailed in England and some of the colonies.
Necessarily it was to uproot all such relationships. But the object was
broader than separating church and state in this narrow sense. It was to
create a complete and permanent separation of the spheres of religious
activity and civil authority by comprehensively forbidding every form of
public aid or support for religion.' Id., at 31-32.

"The same conclusion has been firmly maintained ever since that time, see
Illinois ex rel. McCollum, supra, at pp. 210-211; McGowan v. Maryland,
supra, at 442-443; Torcaso v. Watkins, supra, at 492-493, 495, and we
reaffirm it now.

"While none of the parties to either of these cases has questioned these
basic conclusions of the Court, both of which have been long established,
recognized and consistently reaffirmed, others continue to question their
history, logic and efficacy. Such contentions, in the light of the
consistent interpretation in cases of this Court, seem entirely untenable
and of value only as academic exercises."

Clark also wrote, on the question of letting some people "excuse themselves"
from participation:

"But we held in Speiser that the constitutional vice of the loyalty oath
procedure discharged any obligation to seek the exemption before challenging
the constitutionality of the conditions upon which it might have been
denied. 357 U. S., at 529. Similarly, we have held that one need not apply
for a permit to distribute constitutionally protected literature, Lovell v.
Griffin, 303 U. S. 444, or to deliver a speech, Thomas v. Collins, 323 U. S.
516, before he may attack the constitutionality of a licensing system of
which the defect is patent. Insofar as these cases implicate only questions
of establishment, it seems to me that the availability of an excuse is
constitutionally irrelevant. Moreover, the excusal procedure seems to me to
operate in such a way as to discourage the free exercise of religion on the
part of those who might wish to utilize it, thereby rendering it
unconstitutional in an additional and quite distinct respect."

Read it all at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=374&invol=203

Melynda Huskey


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