“Separation of Church & State: Constitutional Policy in Conflict”

Angela Oberbauer

Occasional Lectures 2008

San Diego Mesa College

Political Science Department

San Diego, California

May 9, 2008

Published in The Forum on Public Policy Journal, February 2008,

At http://www.forumonpublicpolicy.com

Overview of Study

Constitutional Policy on Separation of Church and State.

Court Rulings: on prayer or religious activities in public schools, Financial Aid to Religious Schools and Churches, rulings on forwarding theocratic state laws by the Religious Right.

Interest Groups in Conflict with interpretation of Establishment and Free Exercise Clauses.

What is the ideology trend within the Supreme Court today?

Philosophies and goals of some Religious and Conservative Right Interest Groups in America that unite them with President George W. Bush.

Have there been accomplishments by the “Religious Right?”

“Separation of Church and State”

Dante Alighieri (1312) On Monarchy [De Monarchia]:

Best way to attain order and justice for the civilians of Florence [or the known world]…is to have a temporal order to ensure the least conflict among men, resulting in universal peace without interference from the Pope or Church.

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Constitutional Policy on “Separation of Church and State”

Article VI: no religious test shall ever be required as a qualification to public office or public trust 1787.

http://student.britannica.com

Constitutional Policy on “Separation of Church and State”

In the Bill of Rights 1791: The First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…..”

The Establishment and Free Exercise Clauses.

www.britannica.com/.../ US-Bill-of-Rights-1791

U.S. Policy on “Separation of Church and State”

The Tripoli Treaty between U.S. and Barbary States, June 10, 1797, Article 11: “As the Government of the United States of America is not, in

any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity [sic], of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries” (Library of Congress, 3094-96).

Signed by President Adams, Secretary of State Pinckney, and ratified by the Senate [translated into English at that time by Joel Barlow, including the document receipt].

Jefferson wrote the Danbury Baptist Association in 1802,

emphasizing a “Wall of Separation”

www.godawa.com

Jefferson’s “Wall of Separation”

On May 5, 1817, Jefferson wrote former President John Adams [a Unitarian]:

– “If, by religion we are to understand sectarian dogmas, in which no two of them agree, then your exclamation is just…[and]…that this would be the best of all possible world’s, if there were no religion in it.”

McConnell (2006),44

Courts Begin to Evaluate the Establishment and Free Exercise Clauses in the 19th Century

Reynolds v. United States (1879):

U.S. District Court in the Territory of Utah, charged George Reynolds with bigamy in violation of the Federal Law sect. 5352.

The Supreme Court Ruled in Reynolds favor:

Chief Justice Waite delivered the opinion:

1.Reynolds proved it was his duty issued by his religion [Mormon Church] to practice polygamy; and refusal “…would be damnation in the life to come.”

2. “Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion…”

Courts evaluate possible violations to the Establishment and Free Exercise Clauses in the

20th Century

State Laws supporting a religious belief, or violating the Establishment and Free Exercise clauses, are now seriously looked at by the Supreme Court in the 20th Century.

The Court begins to apply the 14th Amendment (1868) to enforce their rulings upon State governments, called “The Incorporation Theory:”

The First Amendment’s Establishment and Free Exercise Clauses apply to State governments

through the 14th Amendment’s “due process and equal protection clauses.”

Court Rulings On Religious Activities or Support by Government in Public Institutions.

Cantwell v. Connecticut (1940) - Free Exercise of Religion: Court ruled in favor of Cantwell, a Jehovah’s Witness [from New Haven, Connecticut].

Everson v. Board of Education (1947) - [relevant to the Establishment Clause): Court upheld a state law that reimbursed parents for the cost of busing their children to parochial schools because the Majority felt the parents were only reimbursed, not the parochial school.– Similar ruling in Brd. Of Ed. V. Allen (1968).

Court Rulings: Continued

Zorach v. Clauson (1952) - Court upheld release time for religious practice in churches and synagogues.

Engel v. Vitale (1962), the Court ruled that New York's public school practice of beginning school days with a prayer drafted by school officials violated the Establishment Clause. 

Wallace v. Jaffree (1985) - ruled against silent meditation in classrooms.  

Court Rulings, Continued

Lee v Weisman (1992), prayer had been spoken before a graduation ceremony. Justice Kennedy wrote the majority 5-4 opinion, arguing prayer at graduation was unacceptable coercion.

Sante Fe v. Doe (2000) - Court ruled that student initiated prayers could not be spoken over public address systems.

The Court has demonstrated a willingness to strike down any practices that might be likely to be perceived either as coercive or as a state endorsement of religion.

Religious Activists Take Action

Scopes v. State (1927): Tennessee State Law– The 1925 Anti-Evolution Act.– Tennessee State Supreme Court upheld state law which

prohibited school teachers to teach any theory that “…denies the story of divine creation of man as taught in the

bible…[or]…to teach instead that man has descended from lower order of animals.”

Later: Epperson v. Arkansas (1968). Arkansas State Anti-Evolution Act 1928 resulted in Fundamentalist passionate political action. Court ruled: “State of Arkansas cannot require that teaching and learning must be tailored to the principles or prohibitions of any religion or dogma.”

Opponents to the Theory of Evolution

Young Earth Creationism: Accept literal account of creation out of the Bible

taking place over 6, 24-hour days.

Intelligent Design: Accept geologic dating of the earth and agree that

evidence supports microevolution. However, believe it is scientifically impossible for living

change as they now exist to have evolved by chance through large numbers of random mutations.

The Court sets down the Lemon Test with Lemon v. Kurtzman (1971): defining when government action

violates Establishment Clause, unless:

1. The action shows a non-secular purpose;

2. The action does not have the primary effect of advancing or inhibiting religion, and

3. The action does not foster excessive entanglement between government and religion.

Additional Court Rulings:

Roe v Wade (1973). Texas State Law prohibited Abortion.

Justice Blackmun wrote for the Majority:

In reviewing past and present theological and medical assumptions of when life begins: “…In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.”

Court Rulings:

Lawrence v. Texas (2003): Texas State Law prohibited sodomy activities between homosexual persons.– Kennedy wrote the decision: “…The Court held that laws

against sodomy that are directed to one group, violate the due process clause of the Fourteenth Amendment.”

– Kennedy further noted: “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”

How Far to the Right, or not, is the present U.S. Supreme Court? Some recent rulings.

Gonzales v. Carhart & Gonzales v. Planned Parenthood,(2007): – The present Supreme Court with 5-4 overturned [two]

Federal Appellate Court rulings, by ruling that the Federal “Partial-Birth Abortion Ban Act of 2003” was constitutional, even though this law lacked any language protecting the mother in case she were too ill to carry the fetus to fruition.

Gonzales v. Carhart & Gonzales v. Planned Parenthood,(2007):

– Justice Kennedy pointed out that the Act did not impose undue burden on a woman’s right to abortion based on its lack of a health exception.

– Kennedy wrote further that the Act defines the fetus in the womb as a living organism…It prohibits the killing of a living fetus if a doctor kills the partially delivered living fetus…[which Kennedy further added]…expresses respect for the dignity of human life.”

More recent rulings:

Hein v. Freedom From Religion Foundation (2007): Court ruled 5-4 stating the “White House Office of Faith-Based and Community Initiative---[which allows the White House Office to conduct and finance Church events, training, financially supports religious social organizations, and gives financial aid to numerous religious conferences, training, and grant-giving, and aid to various church social support systems], does not violate the Constitution’s Establishment Clause.

Hein v. Freedom From Religion Foundation (2007):

Further, Justice Samuel Anthony Alito reversed judgment from lower courts standing with

Flast v. Cohen (1968).

Alito denied evidence that taxpayer monies are being used for Religious purposes in the White House under Article I Paragraph 8 of the Constitution.

Further recent rulings:

Ledbetter v. Goodyear (2007):

Court decision 5-4: The Majority rules in favor of Goodyear.– Against workers seeking pay discrimination under the Civil

Rights Act of 1964, Title VII (180 day provision).– 11th Appellate Court in Atlanta, Georgia (a conservative

region), erased a lower District Court’s verdict entirely--because [It] found no evidence of pay discrimination.

– A District Court Jury in Birmingham, Alabama (Conservative region as well) originally awarded Ledbetter $3 million in damages, but trial judge reduced amount to $360,000.

Some recent rulings:

Death Penalty cases: 14 of 18 non-Texas cases, the prosecution prevailed in nearly every criminal case.

– Baze v. Rees (April 14, 2008): Court upholds execution by lethal injection in Kentucky.

One-third of the Court’s decisions, more than in any recent term, were decided 5-4 along ideological lines.

The Nine Justices

Who are the nine U.S. Supreme

Court Justices?

Characteristics of Present Supreme Court Justices

Eight males: seven white, one black.One female: white.Educated: At best universities.

lawyersusadcdicta.wordpress.com

Characteristics of Present Supreme Court Justices

Five Justices are considered Conservative, and are Catholic:– Chief Justice John Roberts,

2005, Pres. George W. Bush.– Assoc. Justice Antonin Scalia,

1986, Pres. Ronald Reagan.– Assoc. Justice Clarence

Thomas, 1991, Pres. George H.W. Bush.– Assoc. Justice Anthony

Kennedy, 1988, Pres. Ronald Reagan.– Assoc. Justice Samuel

Anthony Alito, Jr. 2006, Pres. George W. Bush.

lawyersusadcdicta.wordpress.com

Characteristics of Present Supreme Court Justices

Four Justices are considered as moderate with following religious affiliation:– Assoc. Justice Ruth Bader

Ginsburg [Jewish], 1993, Pres. William Clinton.

– Assoc. Justice Stephen G. Breyer [Jewish], 1994, Pres. William Clinton.

– Assoc. Justice David Hackett Souter [Protestant], 1990, Pres. G.H.W. Bush

– Assoc. Justice John Paul Stevens [ Protestant], 1975, Pres. Gerald Ford.

lawyersusadcdicta.wordpress.com

Why the Conservative Right Advocates for Its Values. A Common Theme?

William Simon in the early 1970s: A Conservative wealthy Catholic who was former Secretary of Treasury under President Nixon.

ww2.lafayette.edu

A Common Theme?

After Nixon, Simon was appointed head of John M. Olin Foundation.

Creator of the conservative Simon Plan to “re-moralize America:”

We must regenerate a new Conservative Message, and focus on traditionalist, pre-Vatican II Catholic Moral issues.

Simon stated: “there is no separating [my] faith from politics.”

A Common Theme?

Simon defined further:

Our business world friends have to destroy liberal causes, such as: Social Security, Medicare, ideas on universal

health insurance, and go after liberal institutions, e.g. universities, unions, mainstream religions and media.

We must secure advocates into political, economic, educational, and media positions.

A Common Theme?

Simon’s “Unified Message” was following: The message appears “centrist” on any given issue.

It descends intact from the “think tank” with talking

points to pundit, who puts the message into daily

discourse.

Then give the message to the political candidate.

Additional Advocates of the Conservative Right: The Gablers

Mel and Norma Gabler: Founded “Educational

Research Analysts, conservative Christian organization out of Texas.

For five decades [1960-present] reformed how school textbooks would reflect their conservative values.

www.aliciapatterson.org

The Gablers

Some of the Gabler Reforms in school textbook content were following:

School books should present a universe that rewards virtue and punishes vice.

Good and evil are not moral equivalents.

The Gablers

Christian views on current controversial issues such as a global warming, feminism, evolution, and sensitive treatment of benefits to two parent families should be represented.

High school world history text should prevent stereotypes of whites as oppressors and people of color as victims.

The Neo-Cons.

Leo StraussNeo-cons (new Republican Conservatives):– Inspired by political philosophical ideas of Leo Strauss, former Theorist

in Political Science at University of Chicago.

www.mindfully.org

The Neo-Cons.

Strauss believed modernity and liberal ideas of democracy---he called “Nihilism,” are the cause for the immoral hedonism existent in America [and the world] today.

An “Authority” needs to be established: a “wise tyrant” who can and should use “noble lies”, especially when secrecy is necessary, to enforce changes in political and social behavior that will re-establish a moral society in America exercising moral behavior.

Also, an American control and dominance of the world is important for this Authority to be successful.

The Neo-Cons.

Some Straussians:

Abram Shulsky, Paul Wolfowitz, John Ashcroft, Justice Clarence Thomas, Robert Bork, Irving Kristol, William Kristol, Gertrude Himmelfarb, Robert Kaglan, Alan Keyes, Newt Gingrich,

Dick Cheney, Donald Rumsfeld, William J. Bennett,

J. Danforth Quale, Gary Bauer, Michael Ledeen.

The Neo-Cons also follow the Simon Plan.

Reconstructionism

Rousus John Rushdoony, Calvinist, later Presbyterian Minister,

founded Chalcedon Foundation in 1965.

eformedcovenanter.wordpress.com

Reconstructionism

Rushdoony Religious views are following: Believed that the American Society must be

infiltrated with Conservative Christian values: To ensure a “Church Authority” similar to the Middle

Ages in which state with church would be ruled by elitists to secure:

– Morality, control, and economic strength.– Rushdoony stated Wealth [is] a religious value noted

in the Old Testament, Deuteronomy 28, in Chapter 30, Versus 19 & 20, [a reward from God for goodness].

– He urged his followers to secure advocates into political, economic, education, and media positions.

Reconstructionism

Some of Rushdoony Followers:

Gary North, also Pat Robertson who established the “Christian Coalition” for Christian Right beliefs, and Robertson established Regent University [from which 150 graduates, including former Monica Goodling are or were in the present Administration and Department of Justice);

Further, Tim LaHaye, Gary Bauer, Jerry Falwell and his Moral Majority and his Liberty University from which Mike Huckabee is an alumnus.

Opus Dei [The Work of God].

To understand the Catholic Society “Opus Dei,” one must first understand its fundamental origin, Carlism:

Carlism: [1833 - 1839]: A Spanish group of militant ultra orthodox Catholics who wanted to re-establish the Bourbon Monarchy with close ties to Church and State. Later, Carlists were strong supporters of the Franco Regime.

Spain’s dictator (1936-1978): Francisco Paulino Hermenegildo Te 妖 ulo Franco y Bahamonde.

Opus Dei.

Josemaria Escriva de Balaguer

A Carlist and priest, Escriva founded a Catholic lay Society in 1928. In 1934, he wrote down his ideas in The Way.

dominusjesuschristus.blogspot.com

Principles of Opus Dei

Catholics could achieve “holiness” through everyday work, prayer, unquestioned adherence to Catholic teachings on all social issues, “no” religious dissent, and to further Catholic evangelism.

Bring [all of society] under Pre-Vatican II period of Catholic dogma.

Opus Dei focus on wealth and reverence for economic power.

Structure: Prelature [world diocese], Prelate [Opus Dei leader], Numeraries [single members, celibate], Supernumeraries [married members], Cooperators [supporters].

The Society is directly answerable to the Pope.

Opus Dei

Some supportive non-members: Robert H. Bork, George

Weigel, Senator Sam Brownback, Lawrence Kudlow, former

Senator Santorium of Penn., Supreme Court Justices Thomas

and Scalia, Scalia’s son [Opus Dei priest], Chief Justice John

Roberts, Mary Ann Glendon, [former] U.S. Solicitor General Ted

Olson who won Bush v. Gore in 2000, William Donohue, and

Rev. John McCloskey, among others.

Some supportive non-members: are also supporters of

the Simon Plan and Neo-Con strategies.

Common Threads that brought the Christian Right and

Neo-Cons to support George Walker Bush

blackcatbone.blogspot.com

George Walker Bush

George Walker Bush: born in Connecticut in 1946 into a prominent political family.

His father is George Herbert Walker Bush:

Director of Central Intelligence Agency, Ambassador to United Nations, Vice President under Reagan, 41st President of the United States.

Common Threads that brought the Christian Right and Neo-Cons to support George Walker Bush

Bush stated during 2000 Presidential Campaign: that during the late 1980s, “…I received a revelation from God.”– Bush wrote that he believes in following:

I have a strong Christian faith. I believe in the life of an unborn child, A president must be able to make strong decisions. I believe those who face the death penalty should

receive their punishment to deter others. There is an unprecedented decay in our American

culture, a decay that has eroded the foundations of our collective values and moral standards.

It is important for an “Authority” to ensure re-establishment of Christian morals, standards of conduct, and slow down modern ideas of hedonism.

George Walker Bush

President George W. Bush: Elected 43rd President in 2000 and 2004.– President Bush has exercised unprecedented

Presidential Authority. – His close ties to and allocation of values for

government support to: religious facilities and associations, to the

wealthy and Industry---especially the oil and weaponry industries, is documented through his Executive Orders and Laws he has lobbied for and signed into law.

The Christian Right and Neo-Con Accomplishments

A joining of the Christian and Conservative strategic Message has successfully been infiltrated throughout churches, universities, all areas of government, industry, and public media by their advocates.

The Christian Right and Neo-Con Accomplishments

This Political Machine has been productive in creating closer ties between Church and State, and protecting their followers and constituents through:– supporting and successfully seeing to it that a very

conservative President was elected in 2000 and 2004, who would further their values, that include: An “Authority” leading elites who share the same values

to ensure enactment of laws that reflect morality and control over social, economic, and world values now heads the United States.

– By supporting nominations and receiving confirmations for very conservative additions to the U.S. Supreme Court.

Christian Right and Neo-Con Accomplishments

– receiving favorable Supreme Court decisions on limiting abortion procedures, time-lines and permissions needed when abortions may be undertaken,

– rulings favorable to industry and not favorable to employees.

– government support of religious practices in public institutions.

Christian Right and Neo-Con Accomplishments

– standing behind laws that defy the purpose and meaning of the Establishment and Free Exercise Clauses [including Equal Protection Clause in the 14th Amendment].

– Their Advocates making their religious message an important part of discourse in all areas of the public media, education, economics, and government.

– Slowing down individual freedoms [liberties], with a pursuit to limit modern beliefs to become part of political discourse.

Resulting In

Not all individuals are happy about the closer ties achieved between Church and State accomplished by this combined Conservative interest group effort.

And because democratic processes still exist in America, this political Conflict [this political Discourse] will continue over the issue of “Separation of Church and State.”