Posts tagged with: Establishment Clause

Picture of Mississippi governor who signed HB 1523 into law. A federal judge recently struck down the law. Photo courtesy of U.S. Department of Agriculture

Picture of Mississippi governor Phil Bryant, who signed HB 1523 into law. A federal judge recently struck down the law. Photo courtesy of U.S. Department of Agriculture

Late last month, a federal judge declared Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act” (HB 1523) unconstitutional. In response, legal scholar and libertarian Richard Epstein discussed issues of religious freedom and anti-discrimination initiatives on the latest episode of the Hoover Institution’s podcast, The Libertarian.

The Mississippi law was written to protect those with specific religious objections on issues of marriage, sexual acts outside of marriage, and gender. The law would give people with the specified views the state-protected right to act on these views in business dealings and in roles as administrators. Anti-discrimination LGBT groups argued that the law allows unconstitutional discrimination, and the judge agreed, striking down the law under the Equal Protection Clause. The judge also ruled that the law violated the Establishment Clause because it favored some religious beliefs over others. The case represents one of many recent clashes between freedom of conscience and anti-discrimination laws.

Epstein rejects the judge’s ruling as both legally misguided and finds error in the underlying understanding of tolerance.


acton-commentary-blogimage“Nothing in the Constitution has been so judicially perverted from its original intent as the establishment clause,” says Zack Pruitt in the first entry of this week’s Acton Commentary. “The same clause went from protecting the people from a tyrannical state-run church to punishing those who dare to voluntarily pray on government property.”

A football coach in Washington was recently suspended from his duties because he made a habit of praying at midfield following games. Players or students were never asked or required to participate but some did join him voluntarily for a post-game prayer that typically lasted fifteen to twenty seconds. Prior to his suspension, the coach was ordered to stop praying because school officials, citing the Supreme Court, said they did not want to be seen as endorsing religion. The school district said that “students required to be present by virtue of their participation in football or cheerleading will necessarily suffer a degree of coercion to participate in religious activity when their coaches lead or endorse it.” On the matter of religion, we have moved far from the vision of this nation’s founders.

The full text of the essay can be found here. Subscribe to the free, weekly Acton News & Commentary and other publications here.

Anti-Abortion Activists Demonstrate Outside The Supreme CourtWhat was the Greece vs. Galloway case about?

The short answer: The constitutionality of saying religiously specific prayers (e.g., praying in Jesus name) at government meetings and functions.

The (slightly) longer answer: In the town of Greece, located in upstate New York, the Town Board sessions were opened by a prayer from local clergy, mostly leaders of Christian congregations although in a few instances members of other faith traditions offered the invocation (a Jewish man, a Baha’i leader, and a Wiccan). The Second Circuit Court ruled the prayers were unconstitutional since they aligned the town government officially with a particular faith — Christianity. The case was appealed to the Supreme Court.

What was the Supreme Court’s ruling?

In a 5-4 decision, split along traditional right-left lines with Justice Kennedy joining the majority, the court ruled that the town’s practice of beginning legislative sessions with prayers does not violate the Establishment Clause of the First Amendment. Justice Kennedy’s opinion for the Court concludes:

351px-Ballot1_227c8The phrase “Separation of Church and State” is not in the language of the First Amendment, and the concept was not favored by any influential framer at the time the Bill of Rights was drafted. So how did it become part of the jurisprudence surrounding the First Amendment?

As Jim Lindgren, a law professor at Northwestern, explains, the Ku Klux Klan had something to do with it . . .

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

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