Talk:Establishment Clause

Property Tax

Can anyone explain the justification for religious buildings to be exempt from property tax? Does anyone know more about this? The clause says that they wont "Congress shall make no law respecting an establishment of religion". Allowing them to be exempt from taxes seems to be respecing an establishment of religion. They are respecting that a church is exempt, while I am not, because I am not a church. This seems to be respecting religion. They give preferential treatment to a church, simply because it is an establishment of religion. A business owner has to pay the taxes, because they are not an establishment of religion. Doesnt seem to fit with the clause. Anybody know more about it? how does this work? how are churches tax-exempt?72.174.2.252 10:44, 3 May 2007 (UTC)

I think it might be because churches are nonprofit organazitions, and give money back to the community.

I really don't know. I could be they just get tax-deductions from that money.

RJRocket53 02:46, 2 December 2007 (UTC)

Its because the government wants to be as compleatly seperated from religion as possible plus taxing a religious building could hold a hiderence to the establishment of the religion —Preceding unsigned comment added by 70.130.151.151 (talk) 19:46, 26 January 2008 (UTC)

The First Amendment states "Congress shall make no law respecting establishment of a religion...". It is not until 1866 that the Fourteenth Amendment applied the Bill of Rights to state action. There is no Congressionally established property tax (in the United States as far as I know all property taxes are local; I am not aware of a statewide property tax). Property tax laws generally exclude most non-profit religious and charitable organizations (such as non-profit hospitals etc), not just churches. As a matter of administrative convenience, a lot of property tax laws piggyback on the federal tax code definition of a 501(c)(3) organization; i.e. one to which contributions are deductible in computing federal income tax.Jmarsh48 (talk) 04:44, 15 November 2008 (UTC)

other

The requirement that religion not be a requirement for public office and that oaths for public office include a religious oath are important to understanding the Establishment Clause. The records of the state ratification conventions concerning these clauses are illuminating. They shed light on the original intent of the Establishment Clause75Janice 19:56, 30 December 2006 (UTC)75Janice 5:55 UTC 30 December 2006.

Locke vs. Davey

Locke vs. Davey 540 U.S. 712 (2004) held that it is permissible under the U.S. Constitution to exclude religious programs of study from government funding programs - if state law requires such an exclusions (thus upholding various Blaine Amendments). This is an important case that deserves a section as it undermines many previous arguements against Blaine Amendments (the arguements were based on the establishment clause) Stealthymatt 01:26, 11 May 2007 (UTC)

school prayer

In this section it states that neither the lord's prayer nor the bible may be read in a state school; one presumes that this isn't the case in R.E. lessons! Is this true, and if so it should be added to the article. MHDIV ɪŋglɪʃnɜː(r)d(Suggestion?|wanna chat?) 21:16, 28 May 2007 (UTC)

Not sure what you are referring to by "R.E.", but my understanding is that you can teach passages from the Bible, Koran, or other religious texts as examples of literature, or in the study of religions, as long as you do not promote any one religion. Reading the Lord's Prayer or any other Bible passage as a religious or ceremonial act would be prohibited. Wschart (talk) 15:48, 2 April 2010 (UTC)

I think that might be "Remedial English", though I'm not certain. Either way, I agree with the original point. The section "State-sanctioned prayer in public schools" includes the sentence "The reading of the Lord's Prayer or of the Bible in the classroom of a public school by the teacher was ruled unconstitutional in 1963." I find this too vague. It gives me the impression that a teacher reading the Bible or Lord's Prayer in the classroom for any purpose is unconstitutional. The sentence apparently references the case in the next paragraph, which states "the mandatory reading", instead of just, "the reading." Since P1 is the a summary of actions in the 60's, the sentence belongs, but I feel it needs clarified.

Abington Township v. Schempp quotes the ruling, and makes it clear that the issue is not that the verses are being read, but that the entire situation constituted a state-mandated religious ceremony.

I'm abstaining from changing this myself, as I've never contributed to WikiPedia before. Pmneeley (talk) 05:59, 13 January 2011 (UTC)

State Religions

As I understand it, many states had state churches during and after ratification of the Constitution; and in fact, the original role of this clause was to protect these state churches. It might be useful to point this out somewhere. —The preceding unsigned comment was added by 69.142.107.139 (talk) 00:55, August 24, 2007 (UTC)

Agreed, it should be added. I'm definitely a Wiki-noob, so I've no idea if this kind of source is appropriate, but from "Rethinking the Incorporation of the Establishment Clause: A Federalist View," Harvard Law Review Vol. 105, No. 7.(May, 1992), p. 1703:

"In fact, the Establishment Clause was enacted to prevent Congress from interfering with the church-state relationships that existed in 1791. Specifically, the Establishment Clause was intended to prevent Congress from interfering with the established state churches and with state efforts to accommodate religion. At the same time, the Clause disabled Congress from interfering with the states that had already disestablished their churches. In other words, the Establishment Clause was intended to embody a principle of federalism."

The law review then cites several sources as accommodating this analysis. I'll post them here in case someone more zealous than I wants to find them for whatever amount of extra validity they bring to the edit: WILBERG. KATZ, RELIGION AND AMERICAN CONSTITUTIONS 8-10 (1964); Edward S. Corwin, The Supreme Court as National School Board, 14 LAW & CONTEMP. PROBS. 3, 14 (1949); Clifton B. Kruse, Jr., The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment, WASHBURNL.J. 65, 66 (1962); Joseph M. Snee, Religious Disestablishment and the Fourteenth Amendment, 1954 WASH. U. L.Q. 371, 372-73, 406-07 --00:54, 21 October 2008 (UTC)72.29.211.18 (talk) Fangrim

[-unindent-] OK, so the view is notable, with a big, huge, BUT.

Clarence Thomas endorsed in Newdow v. Elk Grove School Dist. 542 U.S. 1, 49-54 (2004)(Concurring opinion of Thomas, J.) However, it must be pointed up that this is an extreme minority view. Not ONE other Justice joined Thomas's special concurrence. It would give this borderline fringe view undue weight to suggest anything else.

The whole concept is dubious. Although there are some historical arguments, the overall logic is piss-poor. The whole idea starts with two accurate premises:

(A) the Bill of Rights, and 1st Amendment, were meant only to apply to the Federal Government, not state governments, at the time of the framing; AND

(B) therefore, originally, the U.S. Constitution was not meant to suppress state sponsorship of religion by the several states.

OK, both true.

But the conclusion is that (C) the Establishment Clause was meant to PROMOTE state government from sponsoring religion and SHOULDN'T BE INCORPORATED. How do we get from "not limiting" to "encouraging?" The U.S. Constitution did not encourage states do anything except make their own new state governments. If the bill of rights was not a limit on the several states, only the Federal gov't, why would it be interpreted as implicitly encouraging state government? Simple: it wasn't.

The STRONGEST logical position you can take is that the Establishment clause didn't limit states from sponsoring religion in its earliest form. To conclude, as Thomas does in Newdow, that the Establishment clause SHOULDN'T BE incorporated, you need some other kind of support.

This also ignores the fact that since the early 20th century, the Supreme Court has treated the Bill of Rights as applying equally to State governments under the "Incorporation doctrine." It is now unconstutitional for a state to treat an individual in any way that the Federal government may not; there is no longer that double standard whereby State voters can vote to restrict their own rights or tyrannize themselves as they once had the freedom to do. The problem with a "states exempt" establishment clause is that it would bring back that double standard.

It would also run into loggerheads with the coordinate first amendment religion clause re: Free Exercise. Basically, if States start sponsoring one religion, any religion, they will de facto be descriminating against every other religion, or against non-religion. This is bad news. States should NOT go there. Even if it may once have been legal to do so, we live in a different time now, once in which the Federal government has a lot more power and the Federal Constitution creates a lot more rights, and has no problem telling the states what to do, and what not to do. That being the case, there are virtually no takers for the idea that the Establishment clause shouldn't have been incorporated, or should be unincorporated. It would be a disaster on so many levels. Only one notable guy really wants to create that disaster.

In fact, when you really get to the bottom of it, the people pushing "unincorporation" of the Establishment clause tend to be the kind of people who simultaneously argue that there should be no incorporation, that the 14th Amendment is a fraud, that the 1st Amendment should not create as many rights as it does, etc.; this is one more crazy argument in a big bundle of crazy arguments that people who want a more theocratic America advance. Non Curat Lex (talk) 02:21, 21 October 2008 (UTC)

Neither OP nor I ever posited that the Establishment Clause legitimizes the national government's "promotion" or "encouragement" of state religion, nor do we argue that the Establishment Clause remains unincorporated. Your strawman attack against Thomas's stance in Newdow is irrelevant.

Given that this wiki page is *not* limited in content to what modern constitutional law makes of the Establishment Clause, that at its inception it served to prevent the national government from both establishing *and* *disestablishing* state religions is accurate and topical.72.29.211.131 (talk) 21:45, 23 February 2009 (UTC)Fangrim

Major Overhaul Needed

This page needs a major overhaul. This is a pretty shoddy article, given the rather important subject matter. I think that a quality article on the Establishment Clause should include at least an analysis of the 18th century understanding of the clause, a history of the clause up though Hugo Black and the incorporation doctrine, a section on the "taxpayer standing" exception given to Establishment Clause lawsuits under Flast v. Cohen, and the modern critique of Establishment Clause jurisprudence as best articulated by Justice Clarence Thomas in his Newdow dissent.

I agree re historical context. Broke that issue out into its own section on this discussion page. Jordan 22:06, 25 May 2010 (UTC) —Preceding unsigned comment added by Jordanotto (talk • contribs)

Not that it matters

...but, I think the final paragraph, mentioning the depictions of Moses with the Ten Commandments, and Mohammed, on the actual US Supreme Court building is very good. For those who feel seperation of church and state has gone beyond what the Framers had in mind, it is a good piece of evidence. For those, like me, who just love a good irony, it is hilarious. Just imagine, a Supreme Court justice saying, "Religious figures on government buildings, like the ones we have outside, are unconstitutional, so you must get rid of yours, defendant from some state. We'll keep ours, though." —Preceding unsigned comment added by 4.225.111.205 (talk) 04:55, 3 January 2009 (UTC)

Not that I have spent much time thinking about this post but it seems to me that an artistic depiction of historical/mythical lawgivers differs somewhat from an explicit list of religious commandments such as "I am the lord thy god, thou shalt have no other gods before me". —Preceding unsigned comment added by Feloniousd (talk • contribs) 10:25, 23 August 2009 (UTC)

Historical context?

I think it'd be worthwhile to add some historical context to the Clause, including prior versions of it. Jordan —Preceding unsigned comment added by Jordanotto (talk • contribs) 22:04, 25 May 2010 (UTC)

Chaplains

If there has been some arguments over the Constitutionality of chaplains in Congress, I think it should be added. Masternachos (talk) 18:52, 14 June 2010 (UTC)

Protecting the State from the Church

Recently, while editing the Separation of church and state in the United States article, I came across Lawrence D. Weinberg (2007). Religious charter schools: legalities and practicalities. IAP. pp. 18. ISBN 9781593117580. http://books.google.com/books?id=u5pzqle6il8C. Retrieved 11 September 2010. , which characterizes the Establishment Clause as having been meant to prevent the church from exercising undue influence over the state, ... preventing the church from attaining sovereign power. I haven't incorperated this characterization into either article, but thought I would mention it here. Also see here. Wtmitchell (talk) (earlier Boracay Bill) 06:24, 11 September 2010 (UTC)

False dichotomy

"The establishment clause has generally been interpreted to prohibit 1) the establishment of a national religion by Congress, or 2) the preference of one religion over another."

There's nothing preventing it from doing both. I can't be the first person to have noticed this. This article seems extremely thin on substantiation. —Preceding unsigned comment added by MlleMFT (talk • contribs) 20:30, 19 October 2010 (UTC)

I too noticed this. But what I do not understand is how prohibithing the establishment of a national religion by Congress can stop people from expressing their religion in public and on public land. Would this clause also prohibit the government from prohibiting citizens from doing so? That is as long as the religious practices do not cause physical harm to others. — Preceding unsigned comment added by Xeevo (talk • contribs) 20:54, 4 January 2011 (UTC)

No. The First Amendment's Free Exercise Clause generally prevents the government from placing undue burdens on religious exercise. — Preceding unsigned comment added by Mainsail (talk • contribs) 21:55, 7 January 2011 (UTC)

It doesn't stop people from expressing their religion on public grounds (you can still pray in a court house), it stops the government from expressing any one religion on public ground (as this would be favoring this religion over others). In theory the government could, under this clause, put up religious monuments celebrating all religions and non-religious belief systems equally; however this would be quite an undertaking (it would have to be one big monument to display all religious iconography from all over the world). 107.10.53.28 (talk) 06:44, 5 August 2011 (UTC)