Friday, October 22, 2004

The US SC and the Establishment Clause

Another good commentary from Find Law: Two Important Establishment Clause Issues the Supreme Court Will Decide this Term

This term the Supreme Court has taken cases dealing with two diverse areas within the Establishment Clause, and this article is a nice breakdown of the fact patterns in those individual cases, and an overview of this Court's treatment of church and state issues. I think the author does a nice job of demonstrating the legal basis for the Court's general treatment of this area of the First Amendment on a case by case, fact-sensative manner - instead trying to determine a black-letter law that does not exist within the Constitution.

A couple of quotes from the article:

There is more liberty when the government stays neutral toward religion, rather than becoming the vehicle for spreading religious messages.
Where the government transparently endorses a religious viewpoint, as was the case with Roy Moore Ten Commandments, the Establishment Clause violation is readily apparent. ... On the other hand, however, education about religion, or through reference to religion, is not unconstitutional. Indeed, it is a valuable part of any education. Thus, the hard question in each case is whether the particular displays cross the line from permissible education to government endorsement.

Here is the text of the First 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.

The author of the article, Marci A. Hamilton, is a Visiting Scholar at the Princeton Theological Seminary, and the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University.

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