| Ohio State Motto: Constitutional? | |
|
In their effort to argue that Ohio's
motto is not unconstitutional, the majority use most of the first half of their opinion
to argue that the proper and historical understanding of the First Amendment is that
it only prohibits the establishment of a national church - either through officially
creating it or compelling people to worship at a particular church, or through levying
taxes for support of one particular church. This is an argument often advanced by
people seeking to weaken or even eliminate the separation of church and state - but
does it have any merit?
The majority opinion of the court attempts to give the impression that this argument is valid by offering an impressive array of historical quotes, but their use of quotes is rarely accurate. For example, they quote in support of their argument James Madison's Memorial and Remonstrance as arguing merely against forcing citizens to "contribute to the support of a church."
But this requires ignoring the fact that his entire Remonstrance is a detailed argument not simply against establishing a state church, but against taxing people to support religious teaching in any fashion, whether in a church or in any other context.
This was also the understanding of many at the Constitutional Convention. For example, Elbridge Gerry, a colleague of Madison, declared that the Establishment Clause would ensure that "no religious doctrine shall be established by law." It is clear, then, that the overall goal went beyond institutional churches and included the governmental support of any sort of religious instruction.
Were it true that the First Amendment was only thought to prohibit establishing a national church, the authors and the first Senate had many opportunities to demonstrate this - not the least of which would have been adopting more explicit language. Other versions were considered and rejected, for example stating that "Congress shall make no law establishing one religious sect or society in preference to others" or "Congress shall make no law establishing any particular denomination of religion in preference to another."
What the majority of the Sixth Circuit Court failed to understand is that religious doctrines can exist independent of institutional churches. If the government were permitted to endorse or hinder religious doctrines outside of actual churches, the separation of church and state would not have much meaning any more. It has been effectively argued by Gene Garman that while "the separation of church and state" may sound good, we need to remember that it a metaphorical rendering of the concrete and important concept of "separation of religion and government."
What the Establishment Clause should mean for us is not simply that the state cannot endorse or hinder particular churches, but that no level of government should endorse or hinder any religious doctrines or ideologies. The Sixth Circuit Court has ignored the fact that the Supreme Court has ruled with precisely this in mind on many, many occasions.
When the Supreme Court prohibited official school prayers (Engel v. Vitale), it had nothing to do with establishing an official church - it had to do with the official endorsement of particular religious ideologies. The same was true with decisions against official bible readings (Abington v. Schempp), prayers at graduation ceremonies (Lee v. Weisman), posting the Ten Commandments in schools or other government buildings (Stone v. Graham), banning the teaching evolution or requiring the teaching of creationism (Edwards v. Aguilard), and even student-lead prayers at football games (Santa Fe v. Doe).
None of those decisions are consistent with the idea that the government is only prohibited from establishing a national, institutional church. The dissenting opinion included this important quote from Lemon v. Kurtzman:
The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment.
Of course, even if we were to look favorably upon the majority's reading of history and assume that the authors did indeed intend only to prohibit the establishment of a national church, this does not mean that such an intention limits us today. Even though the Eighth Amendment specifically prohibits "cruel and unusual punishment," it was common at th time for people to suffer from whipping, branding, public flogging and the notching of ears.
Obviously, the authors of the Eighth Amendment did not intend it to prohibit such punishments at the hands of the state, but does that mean that we also should allow them? Of course not - the principle of "cruel and unusual punishment" has been expanded. So even if the original intent of the authors of the Establishment Clause was limited, it is clear that it has been expanded by now. If we accept as a moral principle that citizens should be accorded wide latitude in their freedom of religion, this requires that the government avoid endorsing or hindering any religious doctrines.
Poll:
Next page > Theology
of Ohio's Motto >
Page 1, 2, 3,
4, 5
Do you have an opinion about this article? Make it known on the Discussion Forum!
Get weekly updates about what's new on the site and news from around the world:
|
|
|
|
Read the Latest News on religion, freethought and related topics from around the world! Updated regularly. |
Archived Articles: |
|
Make your opinions be heard on the
|
|
