subject:"RE\: Justice Thomas in Newdow"

Yes, I understand that the right to not say the pledge was established firmly in 1943 -- but there is no provision in California law nor in the Elk Grove district rules to honor the law.

There's a difference between having a right and having that right recognized.  When I queried the Elk Grove folks about how a student might opt out, they said no student was allowed out.  The promised to get back to me on it, but events rather overwhelmed them, and I never got an answer.  

As with so many of these issues, I think they turn on the facts.  This particular fact is unclear to me.

Ed Darrell
Dallas



In a message dated 6/20/2004 5:58:58 PM Central Standard Time, [EMAIL PROTECTED] writes:


In a message dated 6/20/2004 12:39:47 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

Perhaps I am wrong, but did not all the parties agree with the characterization of the circumstances in the original Newdow decision?  That is, California requires a patriotic exercise, and Elk Grove's policies require the pledge to meet that law's requirements.  

No, Ed, I think that is the state of the facts.  But that the pledge is required does not mean that no provision has been made for respecting conscientious opposition to pledge recitation.  And that really was my counterpoint, namely that, since Barnette, the right to decline to participate in patriotic exercises on a conscientious basis has been fairly clearly established.  
 
Jim Henderson
Senior Counsel
ACLJ


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Re: Justice Thomas in Newdow

2004-06-20 Thread JMHACLJ




In a message dated 6/20/2004 12:39:47 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
Perhaps I am wrong, but did not all the parties agree with the characterization of the circumstances in the original Newdow decision?  That is, California requires a patriotic exercise, and Elk Grove's policies require the pledge to meet that law's requirements.  
No, Ed, I think that is the state of the facts.  But that the pledge is required does not mean that no provision has been made for respecting conscientious opposition to pledge recitation.  And that really was my counterpoint, namely that, since Barnette, the right to decline to participate in patriotic exercises on a conscientious basis has been fairly clearly established.  
 
Jim Henderson
Senior Counsel
ACLJ
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Re: Justice Thomas in Newdow

In a message dated 6/18/2004 11:38:07 AM Central Standard Time, [EMAIL PROTECTED] writes:


2. The framers may have intended to protect only Protestants, but the language they used protects all religion (why? suppose we discovered that Washington did not really consider Islam a religion).
 


It appears to me that the discussions in Virginia expressly included other religions.  

Jefferson's view:  In his autobiography, Jefferson recounted the passage of the law he proposed to secure religious freedom in Virginia, the Statute for Religious Freedom:  >>Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read, "a departure from the plan of Jesus Christ, the holy author of our religion;" the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan, the Hindoo, and the Infidel of every denomination.<<

[See Life and Selected Writings of Thomas Jefferson, (Modern Library, p. 46)]


Washington's view:  In a letter to George Mason, on October 3, 1785, in response to George Mason's letter asking Washington's views on Patrick Henry's request to pay "religious teachers" out of state funds, Washington wrote: 

>>I have this moment received yours of yesterday's date, enclosing a memorial and remonstrance against the Assessment Bill . . .
   Although no man's sentiments are more opposed to any kind of restraint upon religious principles than mine are; yet I must confess that I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denomination of Christians; or declare themselves Jews, Mahomitans or otherwise, and thereby obtain relief.  As the matter now stands, I wish an assessment had never been agitated, and as it has gone so far, that the Bill could die an easy death; because I think it will be productive of more quiet to the State, than by enacting it into a Law, which in my opinion would be impolitic, admitting there is a decided majority for it, to the disquiet of a respectable minority.  In the first case the matter will soon subside; in the latter, it will rankle and perhaps convulse, the State.  The Dinner Bell rings, and I must conclude with an _expression_ of my concern for your indisposition.<<

[Excerpted from Norman Cousins' The Republic of Reason, The Personal Philosophies of the Founding Fathers, Harper and Row, 1988 (based on a similar book by Cousins from 1958), pp. 64-65.]

The "memorial and remonstrance" was, of course, Madison's writing.  I think it's clear here that Washington considered Islam a religion, and a religion in whose business the state had no role, as with all other faiths or lack thereof.

I'll be visiting Mt. Vernon in August, and perhaps can get more information on Washignton's views.

Ed Darrell
Dallas
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Re: Justice Thomas in Newdow

In a message dated 6/18/2004 11:28:45 AM Central Standard Time, [EMAIL PROTECTED] writes:



Everyone notices when someone is gone for a particular ceremony -- 
every day.  Or does not otherwise participate.  


These may be facts that could be proven.  Or perhaps Justice Kennedy will simply assume that they are so, even though the parties in a particular lawsuit have agreed to other facts to the contrary.  


Perhaps I am wrong, but did not all the parties agree with the characterization of the circumstances in the original Newdow decision?  That is, California requires a patriotic exercise, and Elk Grove's policies require the pledge to meet that law's requirements.  

Ed Darrell
Dallas
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Re: Justice Thomas in Newdow

In a message dated 6/18/2004 10:16:09 AM Central Standard Time, [EMAIL PROTECTED] writes:


I think Ed cites important evidence, though I don't think it cuts in 
the same direction he does.  

Let's consider just the evidence Ed cites himself (using his 
characterizations):  1) the colonies had "mostly disestablished" by 
1778, 2) two years before the constitution was adopted, a "modest re-
establishment" was proposed in Va. and failed, 3) by 1787 four states 
had "vestiges of establishments," 4) by 1816 these had been phased 
out --except for one state, 5) Mass. phased out its establishment in 
1833. 

This evidence alone (there is more, including religious restrictions 
to office holding) is enough to establish that the country as a whole 
had not embraced non-establishment as an individual right as of 1791.  
Remember, the issue is whether the Establishment Clause would have 
been read as an _expression_ of federalism or individual right.  

As a counter example, consider the free exercise clause.  The 
protection of the rights of conscience was ubiquitious in state 
constitutions ca. 1789 (including those states with free exercise 
clauses in the state constitution), and the free exercise clause would 
have been read to embrace the same principle at a federal level.  Non-
establishment clauses, on the other hand, were rare in 1789, while 
regulation of religion was quite common (religious blasphemy laws, 
state enforcement of religious orthodoxy through the control of church 
property, taxes in support of clergy, etc).

Non-establishment was an idea that was growing.  Again, I believe the 
principle was broadly embraced as a national right by 1868.  At the 
time of the Founding, however, Ed's own evidence suggests that the 
framers knew the principle of non-establishment was rejected by a 
number of states, and subject to reconsideration in all.  

Kurt Lash


I don't know how an unbroken trend of disestablishment, coupled with a complete failure to enforce any remaining vestiges of establishment, could be counted as a rejection of establishment.

Let me be clear on this:  By 1778, all colonies had disestablished their churches almost completely.  At no time was there any counter trend to re-establish.

If there is any case where a religious restriction on holding office was ever enforced after 1778, I do not know of it (and I've been searching for years).  I think one must take Jefferson at his word that, when he and Mason rewrote much of Virginia's laws which appear, at first flush, to support religion, they did it in order to bring it into the realm of codification, removing it from common law.  Thus, wrote Jefferson, the law he wrote making blasphemy a crime in Virginia law removed from the jurisdiction of any church the crime, removing religious interference in government completely, and guaranteeing that there would not be any prosecutions for blasphemy in Virginia.  

Starting in 1778, the founders, in all cases, methodically stamped out established churches and systematically removed the churches from official government duties, and the government from official church duties.  By 1787, that view was so accepted that it didn't merit discussion at the Constitutional convention except as to how high a wall of separation needed to be.

Regret I was unclear before.

Ed Darrell
Dallas
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Re: Justice Thomas in Newdow

2004-06-18 Thread A.E. Brownstein

Kurt,
Would it be fair to say that while that the principle of non-establishment 
was still at issue in 1789 at the state level, the principle of  generally 
applicable free exercise rights (free exercise rights for everyone -- not 
just Protestants.) was equally at issue at the state level. Your own, very 
fine article, Power and the Subject of Religion, states that in 1789 
"almost without exception, the extent of one's religious freedom depended 
upon how closely one embraced orthodox Protestant Christianity."

If history determines what the religion clauses mean, then we have at least 
three choices. 1. Interpret both according to state understandings and live 
with the very truncated understanding of both clauses. 2. Accept that 
contemporary understandings at the time the 14th Amendment was ratified 
should control -- providing us a stronger, substantive understanding of 
both clauses -- your view I think), or 3. Recognize that there was a 
substantive/individual rights dimension to both clauses at the federal 
level that differed from what the state's were doing  -- Doug Laycock's 
position, I think.)

Alan Brownstein
UC Davis

At 08:10 AM 6/18/2004 -0700, you wrote:
I think Ed cites important evidence, though I don't think it cuts in
the same direction he does.
Let's consider just the evidence Ed cites himself (using his
characterizations):  1) the colonies had "mostly disestablished" by
1778, 2) two years before the constitution was adopted, a "modest re-
establishment" was proposed in Va. and failed, 3) by 1787 four states
had "vestiges of establishments," 4) by 1816 these had been phased
out --except for one state, 5) Mass. phased out its establishment in
1833.
This evidence alone (there is more, including religious restrictions
to office holding) is enough to establish that the country as a whole
had not embraced non-establishment as an individual right as of 1791.
Remember, the issue is whether the Establishment Clause would have
been read as an expression of federalism or individual right.
As a counter example, consider the free exercise clause.  The
protection of the rights of conscience was ubiquitious in state
constitutions ca. 1789 (including those states with free exercise
clauses in the state constitution), and the free exercise clause would
have been read to embrace the same principle at a federal level.  Non-
establishment clauses, on the other hand, were rare in 1789, while
regulation of religion was quite common (religious blasphemy laws,
state enforcement of religious orthodoxy through the control of church
property, taxes in support of clergy, etc).
Non-establishment was an idea that was growing.  Again, I believe the
principle was broadly embraced as a national right by 1868.  At the
time of the Founding, however, Ed's own evidence suggests that the
framers knew the principle of non-establishment was rejected by a
number of states, and subject to reconsideration in all.
Kurt Lash
Content-Type: multipart/alternative;
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--part1_1d6.242776bb.2e03f245_boundary
Content-Type: text/plain; charset="US-ASCII"
Content-Transfer-Encoding: 7bit
In a message dated 6/17/2004 8:20:09 PM Central Standard Time,
[EMAIL PROTECTED] writes:
> Whatever Madison's reasons for doing so, I believe that most scholars
> would agree that, in 1791, there was deep disagreement about the value
> of state religious establishments.  It is quite likely that many
> founders simultaneously believed that federal establishments were bad
> but state establishments were very important.  I don't think any
> historian working on this period would disagree.
>
Deep divisions?  All thirteen colonies had disestablished, at least mostly,
by 1778.  No colony, or state, ever backtracked on that decision.  By 1787,
only four states had vestiges of establishment left, which were not 
punitive and
were phased out everywhere but Massachusetts by 1816 -- and in Massachusetts
in 1833.  When Patrick Henry proposed a more modest re-establishment in 1785
for Virginia, thousands of Virginians signed petitions in opposition, and the
Virginia assembly instead passed into law Jefferson's Statute for Religious
Freedom, which expressly states that it is a right of humans to be free 
from such
bondage forever.

Other than odd, usually out-of-context quotes from stray "founders," what
evidence is there of any significant support for an established church 
after 1778
-- outside the Mormon movement?

Ed Darrell
Dallas
--part1_1d6.242776bb.2e03f245_boundary
Content-Type: text/html; charset="US-ASCII"
Content-Transfer-Encoding: quoted-printable
In a me= ssage dated 6/17/2004 8:20:09 PM Central Standard Time, 
[EMAIL PROTECTED] wr= ites:

Whatever Madison's reasons for=20= doing so, I believe that most scholars
would agree that, in 1791, there was deep disagreement about the value
of state religious establishments.  It is quite likely that many
founders simultaneously believed that federal establis

RE: Justice Thomas in Newdow

2004-06-18 Thread A.E. Brownstein

Mark's recommendation below is necessary -- what's unclear is whether or 
not it is sufficient.

I'm fond of telling people that having grown up in New York during the 
years when students were directed to recite the Regents Prayer, I still 
remember the Prayer, and I remember when it was declared unconstitutional 
in Engel v. Vitale. But I don't remember anyone ever telling me that it was 
voluntary. I didn't discover that this was a "voluntary" prayer until I 
read Engel in my second year at law school. The Bible readings in Schempp 
were supposed to be voluntary too. I was on a panel with one of the Schempp 
kids (obviously no longer a kid) not that long ago and it is clear he was 
subjected to lots of coercion from school authorities (including overt 
attempts to discourage colleges he applied to from accepting him.)

It may well be as Mark suggests that neither teachers nor fellow students 
will notice if a student fails to say the words "under God." (although my 
experience as a student and with my own kids is that other children are 
very quick to notice whenever someone does something "different." (Hey, how 
come you're not eating the pepperoni pizza at the school party? It's really 
good.)  But people should not feel that they have to exercise their rights 
in hiding.

Moreover, concerns about teacher pressure are at least as strong as 
concerns about peer pressure. The reality is that teachers, particularly 
teachers in grade school, have so much discretionary power over children 
and can make their lives miserable in some many hard to police ways that 
formally opting out of voluntary religious activities is always going to be 
risky for children of minority faiths or no faith.

That reality does not necessarily determine how the Pledge case should have 
been resolved on the merits. But it should be part of the analysis.

And, of course, the analysis has to apply across the board. Christian 
parents and children who have concerns about the way Halloween is 
celebrated, or about the school mascot being a "Blue Devil" that looks like 
the Devil, or other school activities involving religious or supernatural 
content deserve the same respect afforded to Atheists or members of 
non-Christian faiths.

Alan Brownstein
UC Davis

Teachers should tell students and parents that the students do not need to 
say the phrase (or the whole or any other part of the Pledge) and should 
emphasize that the principles of the Pledge require the rest of the 
students to respect such choices.


Mark S. Scarberry
Pepperdine University School of Law

-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Friday, June 18, 2004 9:27 AM
To: [EMAIL PROTECTED]
Subject: Re: Justice Thomas in Newdow

In a message dated 6/18/2004 12:18:28 PM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:

Everyone notices when someone is gone for a particular ceremony --
every day.  Or does not otherwise participate.
These may be facts that could be proven.  Or perhaps Justice Kennedy will 
simply assume that they are so, even though the parties in a particular 
lawsuit have agreed to other facts to the contrary.


But to be honest with you, I doubt the validity of the assertion.  I have 
no way to prove I am right, but I suspect you don't either.  We both are 
just assuming students either are, on your side, highly observant and 
percipient, or, on my side, a bit thick headed on such matters.  Is there 
a constitutional rule of constitutional dimensions that can cut through 
this thicket and resolve it?


Jim Henderson
Senior Counsel
ACLJ
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Re: Justice Thomas in Newdow

2004-06-18 Thread Francis Beckwith

Dear Frances with an "e":

Of course, there are differences between private entities and government
ones, and I am fully conversant with those attributes.  My point was to show
that one could in principle disagree with the claims of a practice, but out
of tolerance and the importance of sustaining a republic based on
fundamental rights see its importance in advancing the public good.

Public schools, in some jurisdictions, offer lesson plans, and make
pronouncements on issues, that are off-putting to religious believers from a
wide variety of traditions.  These religious believers find it troubling
that the state, which coerces its citizens to attend public schools, employs
its power and authority to issue judgments on questions over which citizens
of good will disagree.  It seems to me that if the justification of
jettisoning the pledge is the "atheist student feels marginalized" test,
then in the interest of fairness, lesson plans that offer understandings of
human sexuality, the nature of knowledge, reality, etc., that imply that the
views of the religious citizen are false and/or irrational should go the way
of the pledge.  This is not necessarily my view.  I'm just thinking out loud
and wondering whether we are being inconsistent in expecting the religious
citizen to be tolerant of views and practices he considers aberrant and
harmful while taxing him to pay for their proliferation to his children as
well as his neighbors' children, but we don't expect that sort of tolerance
and acquiescence from the Newdow-types who consider belief in God harmful.

Take care,
Francis, with an "i." :-)

On 6/18/04 11:22 AM, "[EMAIL PROTECTED]" <[EMAIL PROTECTED]> wrote:

> In a message dated 6/18/04 11:42:37 AM Eastern Daylight Time,
> [EMAIL PROTECTED] writes:
> 
> So, like the Christian who must tolerate the distracting presence of nudy bars
> on our interstates as he or she makes her way to church on Sunday mornings, I
> tolerate the Pledge every morning prior to the start of the school day. . . .
> 
> 
> Can you truly not distinguish between commercial speech by private entities
> (the businesses you describe as "nudy bars") and governmental speech?  This is
> facile argument often made in Establishment Clause discussions and one I see
> often in chain emails--that because so much vulgar speech exists in the
> marketplace (think advertising, television, etc.) the government should be
> allowed to engage in religious speech/endorse religion.
> 
> But I will concede we are probably not so far apart on the "icky-ness" of a
> good deal of contemporay American culture. Frances with an "e", an afternoon
> tea (with "biscuits" and sometimes little sandwiches) drinking, garden-loving,
> small dog owning, quaint English village murder mystery reading, reality
> television-Victoria Secret programing-Viagra commercials ("My man likes, let's
> just say, the quality of response it gives him"--ugh!) disapproving British
> import.   
> 
> Frances R. A. Paterson, J.D., Ed.D.
> Associate Professor
> Department of Educational Leadership
> Valdosta State University
> Valdosta, GA 31698
> 
> ___
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> 

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RE: Justice Thomas in Newdow

2004-06-18 Thread marc stern









I hope that the secretary files a Title
Vii religious discrimination claim.

Marc

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Robert Obrien
Sent: Friday, June 18, 2004 1:32
PM
To: Law
 & Religion issues for Law Academics
Subject: Re: Justice Thomas in
Newdow



 



Two stories:  (1) I once represented
a teacher who for five years left the room during the opening prayer at the
initial teachers meeting.  After five years he refused to continue
and complained to the Superintendent. In writing she scorned his
objection.  A suit changed things. (By the way, the judge refused to allow
me attorney's fees, saying the superintendent had changed her policy without a
court order.)





(2) For some years I employed an
excellent legal secretary who was a Jehovah's Witness ( and who happened
to have been an in-law of the Barnett's of Barnette v. Board of Education--note
the change in spelling).  A few years ago she and her husband moved
to North Carolina,
where she quickly found employment.  Recently an attorney who also had
come to respect her special skills invited her to his swearing-in as
judge.  She asked one of the partners in the law firm whether he would be
embarrassed if she did not participate in the Pledge of Allegiance.  A few
days later she was fired.





 





    The facts are that
people do feel depreciated when they have to opt out of formal ceremonies for
religious reasons and when they make their feelings known they are openly
scorned and abused.





 





Bob O'Brien





 





 





- Original Message - 







From: [EMAIL PROTECTED] 





To: [EMAIL PROTECTED] 





Sent: Friday, June 18, 2004 12:27 PM





Subject: Re: Justice Thomas in Newdow





 







In a message dated
6/18/2004 12:18:28 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:





Everyone notices when someone is gone for
a particular ceremony -- 
every day.  Or does not otherwise participate.  







These may be facts that could be
proven.  Or perhaps Justice Kennedy will simply assume that they are so,
even though the parties in a particular lawsuit have agreed to other facts to
the contrary.  





 










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Re: Justice Thomas in Newdow





In a message dated 6/18/2004 2:33:57 PM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
She 
  asked one of the partners in the law firm whether he would be embarrassed if 
  she did not participate in the Pledge of Allegiance.  A few days later 
  she was fired.

Of course, her firing from a private law firm may demonstrate that 
hostility to such opting out prevails in some area or other, but it reflects no 
particular constitutional consideration without demonstrating that government 
actors would likewise behave.
 
Jim Henderson
Senior Counsel
ACLJ
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Re: Justice Thomas in Newdow

2004-06-18 Thread Robert Obrien




Two stories:  (1) I once represented a teacher who for five years left 
the room during the opening prayer at the initial teachers meeting.  After 
five years he refused to continue and complained to the Superintendent. In 
writing she scorned his objection.  A suit changed things. (By the way, the 
judge refused to allow me attorney's fees, saying the superintendent had changed 
her policy without a court order.)
(2) For some years I employed an excellent legal secretary who was a 
Jehovah's Witness ( and who happened to have been an in-law of the 
Barnett's of Barnette v. Board of Education--note the change in 
spelling).  A few years ago she and her husband moved to North 
Carolina, where she quickly found employment.  Recently an attorney who 
also had come to respect her special skills invited her to his swearing-in as 
judge.  She asked one of the partners in the law firm whether he would be 
embarrassed if she did not participate in the Pledge of Allegiance.  A few 
days later she was fired.
 
    The facts are that people do feel depreciated when they 
have to opt out of formal ceremonies for religious reasons and when they make 
their feelings known they are openly scorned and abused.
 
Bob O'Brien
 
 
- Original Message - 

  From: 
  [EMAIL PROTECTED] 
  
  To: [EMAIL PROTECTED] 
  Sent: Friday, June 18, 2004 12:27 
PM
  Subject: Re: Justice Thomas in 
  Newdow
  
  
  In a message dated 6/18/2004 12:18:28 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
  Everyone notices when someone is gone for a particular ceremony -- 
every day.  Or does not otherwise participate.  
  
  
  These may be facts that could be proven.  Or perhaps Justice Kennedy 
  will simply assume that they are so, even though the parties in a particular 
  lawsuit have agreed to other facts to the contrary.  
   
NTMail K12 - the Mail Server for Education
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RE: Justice Thomas in Newdow

2004-06-18 Thread Scarberry, Mark










I doubt anyone would
notice if a student simply omitted the phrase "under God." There
would be no need for a public statement by the student or the student's
parents. On the other hand, there may be areas (most parts of California definitely *not* included) where students might watch
each other to see whether they were saying the phrase. Teachers should tell
students and parents that the students do not need to say the phrase (or the whole
or any other part of the Pledge) and should emphasize that the principles of
the Pledge require the rest of the students to respect such choices.

 



Mark S. Scarberry

Pepperdine University School of Law

 



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] 
Sent: Friday, June 18, 2004 9:27
AM
To: [EMAIL PROTECTED]
Subject: Re: Justice Thomas in
Newdow

 





In a
message dated 6/18/2004 12:18:28 PM Eastern Daylight Time,
[EMAIL PROTECTED] writes:





Everyone
notices when someone is gone for a particular ceremony -- 
every day.  Or does not otherwise participate.  







These
may be facts that could be proven.  Or perhaps Justice Kennedy will simply
assume that they are so, even though the parties in a particular lawsuit have
agreed to other facts to the contrary.  





 





But to
be honest with you, I doubt the validity of the assertion.  I have no way
to prove I am right, but I suspect you don't either.  We both are just
assuming students either are, on your side, highly observant and percipient,
or, on my side, a bit thick headed on such matters.  Is there a
constitutional rule of constitutional dimensions that can cut through this
thicket and resolve it?





 





Jim
Henderson





Senior
Counsel





ACLJ








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Re: Justice Thomas in Newdow

In a message dated 6/18/04 11:46:29 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

unless you have been told, as I was, by a junior high school teacher, that I should not bring my preferred religious text to school for reading during free time, and unless you have been told, as I was, by my high school freshman honors World Civilization teacher, that my faith was fairly puny if it could not stand up to some comparative inspection alongside other "great faiths,"

I think both teachers were wrong--the first was absolutely incorrect as a matter of law (and you know it now and might well have known it then) and the second was gratuitiously rude and disrespectful. Nevertheless, although you refrain from identifying your "preferred religious text" and your faith I would best guess that you received these remarks in the comfortable position of being a member of a member of the religious majority.

I am, as I grow older, more in the business of trying to reconcile philosophy and constitutional jurisprudence--and not a facile way.

Re: your statement "empathic abilities do not determine text or meaning," I beg to disagree on the grounds of trying to understand, as so many of my betters before me, what the framers intended regarding the relationship of the powerful and the less powerful in the realm of religion and the state. It seems to me that the framers were very cognizant of the dangers to adherents of unpopular, disfavored religions and thus were attempting to construct a framework to protect the minority regardless of the nature of that minority in the future.

Got to get to work. It's been a pleasure.

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698
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Re: Justice Thomas in Newdow

2004-06-18 Thread Mark Graber




One of my hobby horses, which I may have raised several years ago (sorry, 
if I have) concerns late eighteenth/early nineteenth century claims that freedom 
of religion mean no discrimination between Protestants (see Joseph Story, Daniel 
Webster).  Why is this off the table at present.
 
1. Turns out, fortunately, that Story was wrong about the framers.
 
2. The framers may have intended to protect only Protestants, but the 
language they used protects all religion (why? suppose we discovered that 
Washington did not really consider Islam a religion).
 
3. Other.
 
MAG
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Re: Justice Thomas in Newdow





In a message dated 6/18/2004 12:18:28 PM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
Everyone 
  notices when someone is gone for a particular ceremony -- every day.  
  Or does not otherwise participate.  

These may be facts that could be proven.  Or perhaps Justice Kennedy 
will simply assume that they are so, even though the parties in a particular 
lawsuit have agreed to other facts to the contrary.  
 
But to be honest with you, I doubt the validity of the assertion.  I 
have no way to prove I am right, but I suspect you don't either.  We both 
are just assuming students either are, on your side, highly observant and 
percipient, or, on my side, a bit thick headed on such matters.  Is there a 
constitutional rule of constitutional dimensions that can cut through this 
thicket and resolve it?
 
Jim Henderson
Senior Counsel
ACLJ
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Re: Justice Thomas in Newdow

In a message dated 6/18/04 11:42:37 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

So, like the Christian who must tolerate the distracting presence of nudy bars on our interstates as he or she makes her way to church on Sunday mornings, I tolerate the Pledge every morning prior to the start of the school day. . . .

Can you truly not distinguish between commercial speech by private entities (the businesses you describe as "nudy bars") and governmental speech? This is facile argument often made in Establishment Clause discussions and one I see often in chain emails--that because so much vulgar speech exists in the marketplace (think advertising, television, etc.) the government should be allowed to engage in religious speech/endorse religion.

But I will concede we are probably not so far apart on the "icky-ness" of a good deal of contemporay American culture. Frances with an "e", an afternoon tea (with "biscuits" and sometimes little sandwiches) drinking, garden-loving, small dog owning, quaint English village murder mystery reading, reality television-Victoria Secret programing-Viagra commercials ("My man likes, let's just say, the quality of response it gives him"--ugh!) disapproving British import.

Re: Justice Thomas in Newdow

2004-06-18 Thread Steven Jamar


On Friday, June 18, 2004, at 11:49  AM, [EMAIL PROTECTED] wrote:



I had missed this element.  That is, the requirement that students "publicly opt out."  I suppose there may be a different kind of coercion at play when one must actively associate oneself with one's ideas and ideals in order to have the benefit of pleading them.  But on what basis, Steve, do you conclude that opting out had to be done publicly here?

Everyone notices when someone is gone for a particular ceremony -- every day.  Or does not otherwise participate.  This is not a silent prayer where no one knows what one is thinking or not thinking.  This is a public ceremony in which one participates or not.

Perhaps you know of some way it could be done secretly?


-- 
Prof. Steven D. Jamar vox:  202-806-8017
Howard University School of Law   fax:  202-806-8428
2900 Van Ness Street NW	mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar

"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." 

Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918)


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Re: Justice Thomas in Newdow





In a message dated 6/18/2004 11:18:13 AM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
Sorry, 
  Jim, but of course it is coercive to force an elementary or middle or high 
  school student to publicly opt out of a REQUIREMENT.

I had missed this element.  That is, the requirement that students 
"publicly opt out."  I suppose there may be a different kind of coercion at 
play when one must actively associate oneself with one's ideas and ideals in 
order to have the benefit of pleading them.  But on what basis, Steve, do 
you conclude that opting out had to be done publicly here?
 
Jim Henderson
Senior Counsel
ACLJ
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Re: Justice Thomas in Newdow





In a message dated 6/18/2004 11:11:58 AM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
Thanks, 
  Jim.  You just proved my argument.  That YOU don't see the coercion 
  doesn't mean it doesn't exist. It merely shows that if you are a part of the 
  majority (I know, I know, "Define it" "OK, here, a member of monotheistic 
  faith" b/c we have "under God" not "under Gods"), which I assume you are, then 
  you lack the capacity to emphasize with those who object to this practice, 
  i.e., the inclusion of a statement of religious belief in the Pledge.  
  That was a trifle unkind, but you simply don't see coercion or force because 
  for you it just doesn't exist in this situation. 

At some level, I suppose that clarifies the matter:  you are not 
engaged in a constitutional adventure at all, but a philosophical one.  As 
to the capacity for empathy, unless you have been told, as I was, by a junior 
high school teacher, that I should not bring my preferred religious text to 
school for reading during free time, and unless you have been told, as I was, by 
my high school freshman honors World Civilization teacher, that my faith was 
fairly puny if it could not stand up to some comparative inspection alongside 
other "great faiths," then I suggest you don't have an information base adequate 
to make the judgment about my empathic abilities.
 
I empathize entirely with minority religious groups.  But empathic 
abilities do not determine text or meaning.  Unless text and meaning are 
variable according to the perspective of the observer.  And I suppose at 
some level they are:  Humpty Dumpty insisted words meant precisely what he 
said they meant (even though Alice failed to recognize any of the words in the 
way that Humpty used them).  
 
Jim Henderson 
Senior Counsel
ACLJ
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RE: Justice Thomas in Newdow

2004-06-18 Thread Francis J. Beckwith

Title: Message



 
The sort of "golden rule"  argument you are offering 
cuts both ways.  For example, I could argue in the following way if I were 
an atheist: 
 

  I would hope that I live in a society in which religious 
  liberty is viewed as one of many fundamental rights that I possess by virtue 
  of the sort of being I am, and that these rights are not contingent upon human 
  insitutitons or human desire, but rather, are grounded in an enternal 
  unchanging mind. Now, as an atheist, I don't believe any of that stuff. I 
  don't believe that there are such things as immaterial moral properties that 
  human beings have by nature, because I am a materialist who believes that 
  things like "natures," "moral properties," etc. have no ontological status 
  whatsoever.  However, I am grateful that others believe otherwise. So, I 
  support the recitation of the Pledge because it reinforces notions of liberty 
  that makes it easier for me to be an atheist.  So, like the Christian who 
  must tolerate the distracting presence of nudy bars on our interstates as he 
  or she makes her way to church on Sunday mornings, I tolerate the Pledge every 
  morning prior to the start of the school day, and I particularly like 
  the "under God" part, for it puts the "fear of God" in the hearts of 
  those who want to take away my right to believe and practice atheism.   
  Seems like a good bargain to me.
   
Frank
 
 
 
 

-Original Message-From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of [EMAIL PROTECTED]Sent: Friday, June 18, 2004 9:37 
AMTo: [EMAIL PROTECTED]Subject: Re: Justice 
Thomas in Newdow
In a message dated 6/18/04 5:02:57 AM Eastern Daylight 
  Time,[EMAIL PROTECTED] writes:The "lunatic fringe" certainly 
  seems to include a lot of intelligent scholars:As human beings so 
  frequently demonstrate, intelligence (is there a pun in here somewhere?) can 
  certainly be misused in the service of "bad" ends.And, Jim Henderson, 
  your sarcasm does little to advance your argument."Actually, with 
  respect to the pledge. . . perhaps the Supreme Court retrenched and I missed 
  that case.  .  . .  But I'm left to shrug my shoulders and give 
  a constitution-bound sigh."What I find lacking, especially in those 
  who would argue for a weak Establishment Clause, is any honest attempt to put 
  into practice some of what I consider the two related but fundamental 
  religious/moral principles: "Do onto others as you would have them do onto 
  you" and "Love your neighbor as yourself." Both of which exhort us directly or 
  indirectly to empathize with/put ourselves in the position of the person not 
  like ourselves. And incidently I find are related to Rawls' notion of "design 
  a legal system as if you didn't know your place in society."I often 
  wonder how many who argue for a weak Establishment Clause/the discarding of 
  any Establishment Clause test other than coercion (and that with coercion 
  narrowly defined)/making the Establishment Clause inapplicable to state 
  governments (a la Judge Roy Moore) are members of minority religions or 
  nonreligious themselves. It is a great irony that the Baptists argued so 
  fiercely forseparation of church and state when their faith was weak and 
  they were outsiders now that they are in a position of strength argue against 
  the very separation that allow their churches/denomination to flourish--see 
  The Churching ofAmerica.  I write this with the knowledge that some 
  Baptists continue in their denomination's historic opposition to 
  government "entanglement" with religion.In the context of religion 
  clause jurisprudence "do onto others" and "love your neighbor," mean that 
  religious people actually put themselves in the shoesof adherents of 
  minority religious or in the shoes of the nonreligious individuals, which is 
  even more difficult, and look at the law, policy, or practice through their 
  eyes.  It means truly and honestly making a good faith effort (not merely 
  paying lip service) to put oneself in the place of the person unlike yourself 
  and consider the effect of the law, policy, practice on you in your new 
  persona.Frances R. A. Paterson, J.D., Ed.D.Associate Professor 
  (school law)Department of Educational LeadershipValdosta State 
  UniversityValdosta, GA 
31698
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Re: Justice Thomas in Newdow

2004-06-18 Thread Steven Jamar

Sorry, Jim, but of course it is coercive to force an elementary or middle or high school student to publicly opt out of a REQUIREMENT.

It is not just evangelical Christians who have a hard time of it in school.  Anyone who seeks to do something different does.

Steve


 The Elk Grove School District did not and does not coerce pledging.  The state of California did not and does not coerce pledging.  There never was, in this case, a rationally justifiable fear that one who wanted not so to pledge was forced to do so.  So, I suppose I should simply have observed that there was no such coercion.  But what a boredom the language would be without color and metaphor.
 
Jim "My pen takes flight, but my feet are on the ground" Henderson
Senior Counsel
ACLJ

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Howard University School of Law   fax:  202-806-8428
2900 Van Ness Street NW	mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar

"I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits."

Martin Luther King, Jr., (1964, on accepting the Nobel Peace Prize)


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Re: Justice Thomas in Newdow

2004-06-18 Thread Kurt Lash

I think Ed cites important evidence, though I don't think it cuts in 
the same direction he does.  

Let's consider just the evidence Ed cites himself (using his 
characterizations):  1) the colonies had "mostly disestablished" by 
1778, 2) two years before the constitution was adopted, a "modest re-
establishment" was proposed in Va. and failed, 3) by 1787 four states 
had "vestiges of establishments," 4) by 1816 these had been phased 
out --except for one state, 5) Mass. phased out its establishment in 
1833. 

This evidence alone (there is more, including religious restrictions 
to office holding) is enough to establish that the country as a whole 
had not embraced non-establishment as an individual right as of 1791.  
Remember, the issue is whether the Establishment Clause would have 
been read as an expression of federalism or individual right.  

As a counter example, consider the free exercise clause.  The 
protection of the rights of conscience was ubiquitious in state 
constitutions ca. 1789 (including those states with free exercise 
clauses in the state constitution), and the free exercise clause would 
have been read to embrace the same principle at a federal level.  Non-
establishment clauses, on the other hand, were rare in 1789, while 
regulation of religion was quite common (religious blasphemy laws, 
state enforcement of religious orthodoxy through the control of church 
property, taxes in support of clergy, etc).

Non-establishment was an idea that was growing.  Again, I believe the 
principle was broadly embraced as a national right by 1868.  At the 
time of the Founding, however, Ed's own evidence suggests that the 
framers knew the principle of non-establishment was rejected by a 
number of states, and subject to reconsideration in all.  

Kurt Lash

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In a message dated 6/17/2004 8:20:09 PM Central Standard Time, 
[EMAIL PROTECTED] writes:

> Whatever Madison's reasons for doing so, I believe that most scholars 
> would agree that, in 1791, there was deep disagreement about the value 
> of state religious establishments.  It is quite likely that many 
> founders simultaneously believed that federal establishments were bad 
> but state establishments were very important.  I don't think any 
> historian working on this period would disagree.
> 

Deep divisions?  All thirteen colonies had disestablished, at least mostly, 
by 1778.  No colony, or state, ever backtracked on that decision.  By 1787, 
only four states had vestiges of establishment left, which were not punitive and 
were phased out everywhere but Massachusetts by 1816 -- and in Massachusetts 
in 1833.  When Patrick Henry proposed a more modest re-establishment in 1785 
for Virginia, thousands of Virginians signed petitions in opposition, and the 
Virginia assembly instead passed into law Jefferson's Statute for Religious 
Freedom, which expressly states that it is a right of humans to be free from such 
bondage forever. 

Other than odd, usually out-of-context quotes from stray "founders," what 
evidence is there of any significant support for an established church after 1778 
-- outside the Mormon movement?

Ed Darrell
Dallas

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Content-Type: text/html; charset="US-ASCII"
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In a me=
ssage dated 6/17/2004 8:20:09 PM Central Standard Time, [EMAIL PROTECTED] wr=
ites:

Whatever Madison's reasons for=20=
doing so, I believe that most scholars 
would agree that, in 1791, there was deep disagreement about the value 
of state religious establishments.  It is quite likely that many 
founders simultaneously believed that federal establishments were bad 
but state establishments were very important.  I don't think any 
historian working on this period would disagree.

Deep divisions?  All thirteen colonies had disestablished, at least mos=
tly, by 1778.  No colony, or state, ever backtracked on that decision.&=
nbsp; By 1787, only four states had vestiges of establishment left, which we=
re not punitive and were phased out everywhere but Massachusetts by 1816 --=20=
and in Massachusetts in 1833.  When Patrick Henry proposed a more modes=
t re-establishment in 1785 for Virginia, thousands of Virginians signed peti=
tions in opposition, and the Virginia assembly instead passed into law Jeffe=
rson's Statute for Religious Freedom, which expressly states that it is a ri=
ght of humans to be free from such bondage forever. 

Other than odd, usually out-of-context quotes from stray "founders," what ev=
idence is there of any significant support for an established church after 1=
778 -- outside the Mormon movement?

Ed Darrell
Dallas

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Re: Justice Thomas in Newdow

In a message dated 6/18/04 10:49:11 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

There never was, in this case, a rationally justifiable fear that one who wanted not so to pledge was forced to do so.


Thanks, Jim.  You just proved my argument.  That YOU don't see the coercion doesn't mean it doesn't exist. It merely shows that if you are a part of the majority (I know, I know, "Define it" "OK, here, a member of monotheistic faith" b/c we have "under God" not "under Gods"), which I assume you are, then you lack the capacity to emphasize with those who object to this practice, i.e., the inclusion of a statement of religious belief in the Pledge.  That was a trifle unkind, but you simply don't see coercion or force because for you it just doesn't exist in this situation. 

I'm not entirely sure that people that haven't experienced membership in a disfavored group can see it/feel it (or perhaps they can but it takes more effort).  Those who have can sometimes generalize their experiences to other minority groups, e.g., a person who has experienced racial or gender discrimination can more easily empathize with a member of a religious minority.  Think, for instance, of the Jews who were active in the civil rights movement. 

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698

The following, although I'm sure Galbraith wasn't thinking of religion, seemed apropos:

"The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness."--John Kenneth Galbraith

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Re: Justice Thomas in Newdow





In a message dated 6/18/2004 10:38:22 AM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
And, Jim 
  Henderson, your sarcasm does little to advance your 
  argument."Actually, with respect to the pledge. . . perhaps the 
  Supreme Court retrenched and I missed that case.  .  . .  But 
  I'm left to shrug my shoulders and give a constitution-bound 
  sigh."What I find lacking, especially in those who would argue for a 
  weak Establishment Clause, is any honest attempt to put into practice some of 
  what I consider the two related but fundamental religious/moral principles: 
  "Do onto others as you would have them do onto you" and "Love your neighbor as 
  yourself." Both of which exhort us directly or indirectly to empathize 
  with/put ourselves in the position of the person not like ourselves. And 
  incidently I find are related to Rawls' notion of "design a legal system as if 
  you didn't know your place in society."

Professor Paterson has me perplexed.  Perhaps my sarcasm followed to 
quickly on the heels of Ed's sarcasm.  Surely everyone on this listserv, if 
not the general public, knows that the only coercion or psychocoercian or 
metaphysical coercion at stake was the contempt power laying just beneath Dr. 
Newdow's invocation of federal jurisdiction.  The Elk Grove School District 
did not and does not coerce pledging.  The state of California did not and 
does not coerce pledging.  There never was, in this case, a rationally 
justifiable fear that one who wanted not so to pledge was forced to do so.  
So, I suppose I should simply have observed that there was no such 
coercion.  But what a boredom the language would be without color and 
metaphor.
 
Jim "My pen takes flight, but my feet are on the ground" Henderson
Senior Counsel
ACLJ
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Re: Justice Thomas in Newdow

In a message dated 6/18/04 5:02:57 AM Eastern Daylight Time,
[EMAIL PROTECTED] writes:

The "lunatic fringe" certainly seems to include a lot of intelligent scholars:
 
As human beings so frequently demonstrate, intelligence (is there a pun in here somewhere?) can certainly be misused in the service of "bad" ends.

And, Jim Henderson, your sarcasm does little to advance your argument.

"Actually, with respect to the pledge. . . perhaps the Supreme Court retrenched and I missed that case.  .  . .  But I'm left to shrug my shoulders and give a constitution-bound sigh."

What I find lacking, especially in those who would argue for a weak Establishment Clause, is any honest attempt to put into practice some of what I consider the two related but fundamental religious/moral principles: "Do onto others as you would have them do onto you" and "Love your neighbor as yourself." Both of which exhort us directly or indirectly to empathize with/put ourselves in the position of the person not like ourselves. And incidently I find are related to Rawls' notion of "design a legal system as if you didn't know your place in society."

I often wonder how many who argue for a weak Establishment Clause/the discarding of any Establishment Clause test other than coercion (and that with coercion narrowly defined)/making the Establishment Clause inapplicable to state governments (a la Judge Roy Moore) are members of minority religions or nonreligious themselves. It is a great irony that the Baptists argued so fiercely for
separation of church and state when their faith was weak and they were outsiders now that they are in a position of strength argue against the very separation that allow their churches/denomination to flourish--see The Churching of
America.  I write this with the knowledge that some Baptists continue in 
their denomination's historic opposition to government "entanglement" with 
religion.

In the context of religion clause jurisprudence "do onto others" and "love your neighbor," mean that religious people actually put themselves in the shoes
of adherents of minority religious or in the shoes of the nonreligious individuals, which is even more difficult, and look at the law, policy, or practice through their eyes.  It means truly and honestly making a good faith effort (not merely paying lip service) to put oneself in the place of the person unlike yourself and consider the effect of the law, policy, practice on you in your new persona.

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor (school law)
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698

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Re: Justice Thomas in Newdow

2004-06-18 Thread Mark Graber




1. Intentions both with respect to the 
original meaning of establishment clause and the due process clause are 
vague.  I suspect no general consensus existed as to what the establishment 
clause meant in 1791 (if the what the average member of a state legislature 
would think the only good evidence is that the average member of a state 
legislature in 1791 was not a sophisticated thinker on much of anything) and on 
what due process mean in 1868 (witness numerous disputes over meaning in 
antebellum state courts) to say nothing of privileges and immunities.  So 
all we have are statements by a few prominent figures that get selected 
cited.
 
2. So, while we are on the subject of 
selective citation.  Consider Thomas's citation to Amar.  Does he mean 
to endorse Amar's entire reading of the 14th Amendment (which largely celebrates 
the Warren Court) or just the claim that the Fourteenth Amendment did not 
incorporate the establishment clause.  Is this legitimate history or 
neutral principles.  Can Amar's claims about the establishment clause be 
isolated from other his other claims, or do they rise and fall together.  
Does an originalist follow neutral principles merely by citing a distinguished 
historian for a particular point, in which case liberals can be perfectly good 
(we have our historians), or must they buy into the historian's full 
logic.
 
Mark A. 
Graber
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Re: Justice Thomas in Newdow




In a message dated 6/18/2004 3:26:39 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
I'm still looking for the process by which any kid in the Elk Grove school district in California can opt out of this state- and district-required exercise, short of suing.  Is there really such an opt-out provision in California?
And I"m still looking for the process by which an objecting student can opt out of "let's pretend to be a __" this week.  (The case involved instruction about Islam, but of course, the same problem is presented by every "Lets pretend" lesson.)
 
Actually, with respect to the pledge, I thought that flag salutes could not be compulsory against conscientious objection since as long ago as Barnette, but perhaps the Supreme Court retrenched and I missed that case.  If Ed's point is that persons who have no conscientious basis for objecting to the pledge CAN be required to recite it, I suppose he's right about that.  But I'm left to shrug my shoulders and give a constitution-bound sigh.
 
Jim Henderson
Senior Counsel
ACLJ
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RE: Justice Thomas in Newdow

2004-06-18 Thread Stuart BUCK

I've kept a list of various authorities who have at least questioned whether 
incorporating the Establishment Clause makes any logical sense.  The 
"lunatic fringe" certainly seems to include a lot of intelligent scholars:

Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 
1157-58 (1991) ("[T]o apply the [Establishment] clause against a state 
government is precisely to eliminate its right to choose whether to 
establish a religion -- a right explicitly confirmed by the establishment 
clause itself! . . . The Fourteenth Amendment might best be read as 
incorporating free exercise, but not establishment, principles against state 
governments.");

Akhil Reed Amar, The Bill of Rights 32-42 (1998);
Steven D. Smith, Foreordained Failure: The Quest for a Constitutional 
Principle of Religious Freedom 49 - 50 (1995);

Steven D. Smith, Separation as a Tradition, 18 J.L. & Pol. 215, 263 (2002) 
("It may be, for example, that the Supreme Court was mistaken in Everson 
both in asserting that the Fourteenth Amendment was intended to incorporate 
the Establishment Clause against the states and also in asserting that the 
Establishment Clause was intended to adopt a position of "no aid' 
separationism.");

Gerard V. Bradley, Church-State Relationships in America 95 (1987);
Chris Bartolomucci, Note, Rethinking the Incorporation of the Establishment 
Clause: A Federalist View, 105 Harv. L. Rev. 1700 (1992);

Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 
Nw. U. L. Rev. 1113, 1142 (1988) ("The language of the fourteenth amendment, 
coupled with the federalistic motivation for the establishment clause, make 
it exceedingly difficult to argue that the framers and ratifiers of the 
fourteenth amendment intended to incorporate the establishment clause for 
application against the states.");

Charles Fried, Foreword: Revolutions?, 109 Harv. L. Rev. 13, 52-53(1995) 
("There is little doubt that the Establishment Clause (quite apart from its 
opening words 'Congress shall make no law') was specifically intended to 
preserve a freedom of action to the states while denying it to the national 
government.").

Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 
477, 481-82 (1991) ("As a matter of judicial craftsmanship, it is striking 
in retrospect to observe how little intellectual curiosity the members of 
the Court demonstrated in the challenge presented by the task of adapting, 
for application to the states, language that had long served to protect the 
states against the federal government.");

Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion 
Clauses, 41 Stan. L. Rev. 233, 307 (1989) ("The language of the clause was 
directed against congressional creation of a national church or favoritism 
of one ecclesiastical sect over another. Thus, its predominant intent was to 
protect state religious establishments from national displacement.");

John C. Jeffries, Jr. & James E. Ryan, A Political History of the 
Establishment Clause, 100 Mich. L. Rev. 279, 295 (2001) ("If the original 
Establishment Clause aimed to confirm the exclusive authority of the States 
over religion, invoking that provision to disallow state aid to religion is 
paradoxical and perverse.").

William K. Lietzau, Rediscovering the Establishment Clause: Federalism and 
the Rollback of Incorporation, 39 DEPAUL L. REV. 1191, 1210 (1990) ("While 
many specific Bill of Rights incorporations have been criticized, none are 
so thoroughly contradicted by the historically discernible intentions of our 
forefathers than that of the establishment clause.");

Michael J. Malbin, Religion and Politics: The Intentions of the Authors of 
the First Amendment 16 (1978) ("The clause prohibited Congress from 
tampering with the state religious establishments.");

Michael Paulsen, Religion, Equality, and the Constitution: An Equal 
Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. 
REV. 311, 317 (1986) ("Indeed, to the extent that the Framers drafted the 
establishment clause to address concerns of federalism, it makes no more 
sense to 'incorporate' it against the states than it does to incorporate the 
other provisions in the Bill of Rights which are federalism-oriented.");

William C. Porth & Robert P. George, Trimming the Ivy: A Bicentennial 
Re-Examination of the Establishment Clause, 90 W. VA. L. REV. 109, 136-39 
(1987).

William W. van Alstyne, What is "an Establishment of Religion"?, 65 N.C.L. 
Rev. 909, 910 (1987) ("One plausible reading of the first amendment might 
thus be the following one in particular. It makes a great deal of 
straightforward, unobscure sense: that Congress would have no power to 
interfere with any state's religious establishment laws, whatever they might 
be.").

Stephen Carter puts it thus:
Let us be realistic. Surely the clause means what it says, and no more than 
that. At the moment of the founding, the majority o

Re: Justice Thomas in Newdow