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Thread: Help me understand separation of church and state please/

  1. #1

    Default Help me understand separation of church and state please/

    Ok SO I read the 1st amendment

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    And pull out the first line

    congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof


    Congress shall make no law respecting an establishment of religion.

    Ok so congress can't establish any one religion as the religion of the USA nor can it force anyone to become a member of anyone religion or force anyone to be an atheist. Seems logical

    ALSO it says they will not prohibit the free exercise thereof.

    SO were does separation of church and state come in? Its not written in the 1st amendment also does the tenth amendment say it is up to the states what they choose to permit as far as a religious convictions are concerned so long as it doesn't violate the 1 st? After all the tenth amendment is what the states use to control their own school curriculum since public education is not a power given to the fed.

    Can someone explain it for me?

  2. #2

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    I'm not a lawyer, and I'm not an American, but to me "make no law respecting an establishment of religion" reads as "They can't make a law because an establishment of religion (I.e. A church) says so."

  3. #3
    Mesmerale

    Default

    Separation of Church and State is more of an concept than a law.

    Part of the 1st Amendment is meant to enforce that concept.

    The concept itself basically means that the government shall not do anything that advocates or goes against any specific religion, and also that no specific religion shall have any "advantage" as far as influence in the government goes.

  4. #4

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    The phrase "wall of separation between church and state" was first written by Thomas Jefferson explaining what the First Amendment ultimately meant (though the metaphor of a wall was used much earlier). The writings of Madison and Jefferson were instrumental in interpreting the effects of combining the Establishment and Free Exercise clauses of the First Amendment. James Madison, after retiring the Presidency, advocated a complete separation between the two as the only way to preserving both. This notion of separation became solidified in case law in 1878 when a Mormon was convicted of polygamy (Reynolds v US). His defense primarily hinged on a religious defense that as a Mormon, he was religiously compelled to marry multiple women, which has been against the law for a long, LONG time (dating back to English common law). He had a few other arguments, like the legality of the jury pool, and you can read up on those on the wikipedia page if you want, but the religious duty argument was his #1 thing. His argument didn't work, by the way.

    Anyway, that solidified what was already commonly held - that church and government should stay away from each other. This was further expanded in Lemon v. Kurtzman, where the Supreme Court ruled that public school funds could not go to religious schools for secular purposes (ie, buying non-religious supplies, paying non-religious instructors, etc). It was this case that resulted in what is called the Lemon Test for state/church interaction:
    1. The government's action must have a secular legislative purpose;
    2. The government's action must not have the primary effect of either advancing or inhibiting religion;
    3. The government's action must not result in an "excessive government entanglement" with religion.

    If any of those are violated, then the interaction is deemed unconstitutional. This includes funding, scheduling school time or other resources (rooms, teachers, etc) for religious purposes, granting space for religious displays, giving favorable conditions to any religion such as providing government services at a discount, etc. In deciding the outcome of the Lemon Test, the court is allowed to consider basically whatever they want. Actions and statements of government officials involved are a particular favorite. For example, if a government official sells a parcel of government-owned land to a church, that may be okay (depending on the other facts of the case). However, if that official is on record as saying "there, now those commies at the ACLU won't be able to force us to take down the Jesus billboard we put up", it becomes clear the land was signed over not for any legitimate secular reason, but to skirt the separation of church and state and would be pretty much guaranteed to be shot down in court. This Lemon Test has been used by pretty much every court in the land ever since.

    Also interesting to note that this separation is why churches don't pay taxes. In theory, they are not supposed to be represented in government and as such, should not be taxed. Churches have in the past had their tax-exempt status revoked for dabbling too much in politics, but that only really happens in really nasty cases, and even then only when the IRS suspects that a church is intentionally hiding private funds in church accounts for the purpose of avoiding paying taxes.

    Oh yeah, about the 10th amendment - basically, since the 1st puts up the wall of separation, the 10th amendment means that all states are bound by the same restrictions.

  5. #5

    Default



    Quote Originally Posted by bgi39jsjw0ggg View Post
    The phrase "wall of separation between church and state" was first written by Thomas Jefferson explaining what the First Amendment ultimately meant (though the metaphor of a wall was used much earlier). The writings of Madison and Jefferson were instrumental in interpreting the effects of combining the Establishment and Free Exercise clauses of the First Amendment. James Madison, after retiring the Presidency, advocated a complete separation between the two as the only way to preserving both. This notion of separation became solidified in case law in 1878 when a Mormon was convicted of polygamy (Reynolds v US). His defense primarily hinged on a religious defense that as a Mormon, he was religiously compelled to marry multiple women, which has been against the law for a long, LONG time (dating back to English common law). He had a few other arguments, like the legality of the jury pool, and you can read up on those on the wikipedia page if you want, but the religious duty argument was his #1 thing. His argument didn't work, by the way.

    Anyway, that solidified what was already commonly held - that church and government should stay away from each other. This was further expanded in Lemon v. Kurtzman, where the Supreme Court ruled that public school funds could not go to religious schools for secular purposes (ie, buying non-religious supplies, paying non-religious instructors, etc). It was this case that resulted in what is called the Lemon Test for state/church interaction:
    1. The government's action must have a secular legislative purpose;
    2. The government's action must not have the primary effect of either advancing or inhibiting religion;
    3. The government's action must not result in an "excessive government entanglement" with religion.

    If any of those are violated, then the interaction is deemed unconstitutional. This includes funding, scheduling school time or other resources (rooms, teachers, etc) for religious purposes, granting space for religious displays, giving favorable conditions to any religion such as providing government services at a discount, etc. In deciding the outcome of the Lemon Test, the court is allowed to consider basically whatever they want. Actions and statements of government officials involved are a particular favorite. For example, if a government official sells a parcel of government-owned land to a church, that may be okay (depending on the other facts of the case). However, if that official is on record as saying "there, now those commies at the ACLU won't be able to force us to take down the Jesus billboard we put up", it becomes clear the land was signed over not for any legitimate secular reason, but to skirt the separation of church and state and would be pretty much guaranteed to be shot down in court. This Lemon Test has been used by pretty much every court in the land ever since.

    Also interesting to note that this separation is why churches don't pay taxes. In theory, they are not supposed to be represented in government and as such, should not be taxed. Churches have in the past had their tax-exempt status revoked for dabbling too much in politics, but that only really happens in really nasty cases, and even then only when the IRS suspects that a church is intentionally hiding private funds in church accounts for the purpose of avoiding paying taxes.

    Oh yeah, about the 10th amendment - basically, since the 1st puts up the wall of separation, the 10th amendment means that all states are bound by the same restrictions.
    Thank you, that is exactly what I was hoping for in a response. Definitely helps to shed some light on the concept. I don't have a problem with keeping all religions separated from the government with the exception of the military and the VA.

    However, as supposedly sovereign states, shouldn't it be under the states and ultimately the people of that state to set the appropriate boundaries for any type of religious legislature outside of the federal governments control?

  6. #6
    Mesmerale

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    Quote Originally Posted by ChildishDaze View Post
    Thank you, that is exactly what I was hoping for in a response. Definitely helps to shed some light on the concept. I don't have a problem with keeping all religions separated from the government with the exception of the military and the VA.

    However, as supposedly sovereign states, shouldn't it be under the states and ultimately the people of that state to set the appropriate boundaries for any type of religious legislature outside of the federal governments control?
    Technically, maybe?

    But when we decided to combine into a whatever-we-are called "America", we agreed that we'd let the government decide some things, and the states decide some other things.

    This was just one of those things that got dealt out to a particular side.

  7. #7

    Default

    This is long-settled constitutional law. The 14th Amendment's Privileges and Immunities Clause explicitly applies the United States Constitution to the states.

    The text in question: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

    Any state law which violates rights guaranteed by the U.S. Constitution, by definition, abridges the privileges and immunities of citizens of the United States, and hence is null and void.
    Last edited by polarbaby; 20-Feb-2010 at 09:47.

  8. #8

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    Quote Originally Posted by ChildishDaze View Post
    Thank you, that is exactly what I was hoping for in a response. Definitely helps to shed some light on the concept. I don't have a problem with keeping all religions separated from the government with the exception of the military and the VA.
    There are a few exceptions that are accepted in the military (such as chaplains, grave markers, etc), but those are actually at serious risk because of the actions of conservative Christians, most notably in the Air Force Academy in Colorado Springs. This recent incident with bible verses being stamped on high-powered rifle sights didn't help matters, either. There have been documented cases where military officers in Iraq were calling it a "crusade", and how the bible verses turned a gun in to a weapon of Christ. Of course, it's the military, so people in war zones are going to do what they're going to do, but actions like that are going to bring some really close scrutiny to the situation if they don't settle down.



    Quote Originally Posted by ChildishDaze View Post
    However, as supposedly sovereign states, shouldn't it be under the states and ultimately the people of that state to set the appropriate boundaries for any type of religious legislature outside of the federal governments control?
    Well...



    Quote Originally Posted by polarbaby View Post
    This is long-settled constitutional law. The 14th Amendment's Privileges and Immunities Clause explicitly applies the United States Constitution to the states.

    The text in question: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

    Any state law which violates rights guaranteed by the U.S. Constitution, by definition, abridges the privileges and immunities of citizens of the United States, and hence is null and void.
    Yeah, pretty much this. The 10th and 14th amendments basically grant the states the power to regulate what they want, but there are things that a state can't do. A state can't enact a law that would violate the constitution, which is why DC v Heller came out that DC couldn't institute an outright ban on handguns. Also, as per the 14th amendment, a state's laws must apply equally to everyone (with the only exception allowed being election laws where citizens are granted extra rights) - this is why Jim Crow segregation laws were universally destroyed.

  9. #9

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    Oh hell, I am knucklehead, sometimes i get so focused on the the bill of rights I forget the other 17 amendments.

    So, prior to the 14th, states could violate the constitution within their states so long as the federal had no influence over the particular issue at hand? Or am I still misunderstanding it?

  10. #10

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    Quote Originally Posted by ChildishDaze View Post
    Oh hell, I am knucklehead, sometimes i get so focused on the the bill of rights I forget the other 17 amendments.

    So, prior to the 14th, states could violate the constitution within their states so long as the federal had no influence over the particular issue at hand? Or am I still misunderstanding it?
    Yes and no. There were arguments on both sides, but in the wake of the Dred Scott decision, there were some serious problems in the southern states surrounding the treatment of former slaves - things like stripping them of their rights to be heard in court. Basically, it was decided that the only way to actually prevent the individual states from violating the constitution would be to ratify an amendment explicitly stating that all state action had to be bound by the constitution, and states would not be allowed to create discriminatory laws. It could have been possible otherwise, but the fastest, easiest, cheapest, and most iron-clad route (as well as the one with the most public support) was the 14th amendment. It could have gone through court cases, but the Scott v Sanford decision made it pretty clear that it would have to go through the superior court of every single state in order for it to make any difference without the amendment.

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