Sunday, May 11, 2014

Olson on Greece v. Galloway

I haven't had a chance to read the original decision. Though, Walter Olson's opinion on the matter at Secular Right seems quite "fair and balanced" for lack of a better term.

6 comments:

Jason Pappas said...

I find Justice Thomas' statement of particular interest: that constitutional protections limit the federal, not local, practices. I haven't read his whole statement but one wonders if he would prohibit prayer at federal functions. Andrew Jackson thought so. He refuse to say a prayer for plague victims but added that one could request one from one's governor.

Of course, the establishment only applied to the federal level and Massachusetts had an established church until the 1830s, if I remember correctly. However, it seems that states eventually adopted the federal ethos.

Tom Van Dyke said...

OTOH, all 50 states reference God in their constitutions; many of the states were admitted after well after the 1820s.

http://www.truthorfiction.com/rumors/g/god-constitutions.htm#.U2-9loFdW4o

And a primary argument in the majority opinion in City of Greece written by Justice Kennedy points out that Congress itself has had prayers from paid chaplains since the beginning of the republic.

"An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court's cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could "coexis[t] with the principles of disestablishment and religious freedom." 463 U.S., at 786 . The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate's first chaplains, the Rev. William White, gave prayers in a series that included the Lord's Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom's Prayer, and a prayer seeking "the grace of our Lord Jesus Christ, &c." Letter from W. White to H. Jones (Dec. 29, 1830), in B. Wilson, Memoir of the Life of the Right Reverend William White, D. D., Bishop of the Protestant Episcopal Church in the State of Pennsylvania 322 (1839); see also New Hampshire Patriot & State Gazette, Dec. 15, 1823, p. 1 (describing a Senate prayer addressing the "Throne of Grace"); Cong. Globe, 37th Cong., 1st Sess., 2 (1861) (reciting the Lord's Prayer). The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom."

wsforten said...

This conclusion was very similar to the conclusion of Marsh v. Chambers in 1983 in which the Court declared that "The content of the prayer is not of concern to judges." And according to Zorach v. Classon in 1952,

The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly.

http://www.increasinglearning.com/1/post/2014/04/supreme-court-rules-on-carroll-county-prayers.html

wsforten said...

By the way, in Zorach v. Clausson, the Court seems to have derived the a similar understanding of Jefferson's "wall of separation" as that which I have proposed here: http://www.thefederalistpapers.org/current-events/what-did-jefferson-mean-by-the-phrase-wall-of-separation

JMS said...

If you want to go back to the “the beginning of the republic,” while we must acknowledge a plurality of opinions about the First Amendment’s Establishment Clause, the one that prevailed came from the minds, pens and actions of James Madison and Baptist preacher John Leland, who wrote:

"Experience...has informed us that the fondness of magistrates to foster Christianity has done it more harm than all the persecutions ever did."

“Truth disdains the aid of law for its defense—it will stand upon its own merit. It is error, and error alone, that needs human support; and whenever men fly to the law or sword to protect their system of religion, and force it upon others, it is evident that they have something in their system that will not bear the light, and stand upon the basis of truth.”

Tom Van Dyke said...

The full John Leland quote:

"Experience has
informed us that the fondness of magistrates to foster Christianity has done it more harm than all the persecutions ever did.

Persecution, like the lion, tears the saints to death, but leaves Christianity pure. State establishment of religion, like a bear, hugs the saints, but corrupts Christianity.'"

In Leland's milieu state establishment of religion, meant not a general "Christianity," but a specific Congregationalism or Episcopalianism or one of the other Protestant denominations.

And as a Baptist, they were always at the brown end of the stick, an also-ran behind Anglicanism and Presbyterianism.

I'm not alone in suspecting Madison of unitarian leanings; if so, this makes his consistent resistance to entrenching the established mainstream sects via government support [financial or otherwise] understandable.

State support of the sects would inhibit theological innovation. [Although as it turned out, Mormonism, 7th-Day Adventism and the passel of other new "American" religions put the lie to that.]

That the government should not and cannot dictate the fine points of sectarian Christian dogma was self-evident by the 1800s; indeed the English Civil Wars of the 1600s had proven that not even Protestantism would ever enjoy the requisite unanimity, the Calvinists vs. the Church of England, and everybody against the Quakers and whatnot.

Whether Leland would have endorsed a "naked public square" devoid of all God is questionable. Jefferson didn't.

Zorach v. Clauson holds, at least for the time being.

The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly.