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June 29, 2005
The church, the state, and the Supreme Court
Professor Carl Esbeck--a professor of mine in law school--has written a brief article in Liberty Magazine discussing the current status of church/state relations. In his article he addresses, in a very reasonable, readable tone, some of the most pervasive red herrings that predominate today's debates.
According to Esbeck:
The effort to put prayer back into public school athletic events, as well as to prevent the removal of the Ten Commandments from government buildings, is seriously misguided. Notwithstanding loud and persistent claims to the contrary, the free exercise clause does not give citizens a right to seize the levers of government and employ the machinery of state in praying one's prayers and expounding one's scriptures. Prayer and the veneration of scripture are inherently religious activities. Such practices are within the sole province of churches and individual believers. Government activity, including teacher-led school prayer and the official veneration of religious symbols such as the Ten Commandments, is an example of Caesar acting outside his proper jurisdiction.
. . . .
There are those attempting to make of the establishment clause a constitutional right to be free from the religion of others. This is illustrated by the continued resistance to grant equal access to student religious clubs at public school facilities during noncurricular and after-school hours, as well as by restrictions placed on these clubs' use of school bulletin boards and other channels of communication enjoyed by similar secular clubs. . . . [T]he framers who drafted the [Establisment and Free Exercise] clauses laid them next to each other in the First Amendment. It makes no sense to suppose they wrote back-to-back provisions that conflict. Modesty requires that school lawyers concede the absence of any hermeneutical logic to their position. Third, the Bill of Rights was adopted because the founding generation feared an overly powerful government. Thus the establishment clause, like all other provisions of the Bill of Rights, operates only to limit the actions of government. The clause cannot work to limit the actions of private parties, such as students desiring to attend a religious club.
Professor Esbeck was the primary figure behind "Charitable Choice"--the provision in the 1996 Federal Welfare Reform Act that allows faith based social service organizations to cooperate with state and local agencies in assisting the poor and needy--and is a preeminent scholar in the field of religious liberties. He is also a leading advocate for school vouchers, and is widely considered an intellectual architect of the Bush administration's church/state policy.
Posted by Jonathan Bunch at June 29, 2005 07:01 PM
I haven't yet read the entire article, but I wonder what he is referring to when he points to "the continued resistance to grant equal access to student religious clubs at public school facilities during noncurricular and after-school hours." I'm not aware of much opposition to such things at all. There are literally thousands of such clubs that use public school facilities after school just like the chess club or the german club and though I've occassionally heard of a school administrator who stupidly thinks that's not allowed, it takes no more than a letter from an attorney explaining the law to fix the problem. The major pro-separation organizations, the ACLU and Americans United, are both supportive of the right of religious clubs to use school facilities. But perhaps there are cases out there that I haven't heard about.
Beyond that, I think he gets the tone pretty much correct. I note that he comes out strongly against the federalism-only interpretation of the establishment clause, and will probably use this in my essay on that subject. I certainly would disagree with his assertion that the incorporation doctrine was "quite a stretch" and have offered much documentary evidence for that in the past. This will be interesting to examine in more detail. Thanks for the link.
Posted by: Ed Brayton at June 29, 2005 07:53 PM | permalink
Professor Esbeck would probably answer most of your questions via e-mail. Otherwise I suggest reading his scholarly work, which is far more comprehensive, and documented, than this essay. His latest article is available online in an issue of the BYU Law Review which offers several articles on church/state stuff, including one by Mark Tushnet.
Posted by: Jonathan Bunch at June 30, 2005 01:08 AM | permalink
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