Most people today, including a lot of judges, do not understand what the term "establishment of religion" meant in the 1700s. Most European countries had "established" churches--official churches, favored by the government; in many countries, other churches were banned. Even most of the American colonies had established churches--the Church of England in New York and the southern colonies, the Congregational (previously known as the Puritans) in New England.
In England, Wales, and Ireland, the Church of England had both power and special privileges. Bishops and archbishops of the Church of England had seats in the House of Lords, the upper house of Parliament. In order to hold any public office, you had to take Communion in the Church of England; for a long time, you had to be in the state church even to vote. In Ireland in the 1700s, if you wanted to be legally married, you had to have the ceremony in an Anglican church; this and other oppressions were a factor in the mass emigration of Presbyterian Ulster Scots to the American colonies between 1715 and 1775 (later called Scotch-Irish to distinguish them from the Catholic Irish who came to America during the potato famine of the mid-1800s).
When the Bill of Rights was added to the Constitution, the decision was made not to have an official, "established" church in the United States. And over time, the older states that did have them "dis-established" them. And the new states that sprang up in the western settlements didn't even bother about it.
Indeed; so “By providing that government couldn’t be used to advance or repress particular religions” needs to have “federal” inserted. The actual text of the First Amendment, which most of us (including the Supreme Court) get wrong nowadays, is “*Congress* shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” States were left free to advance their established religions until the Supreme Court rewrote the First Amendment using the Fourteenth as a pretext.
The 14th Amendment had nothing to do with ending established churches in the states. It was adopted in 1868--and all of the states had abandoned established churches well before that. Most of the southern states ended church establishment during the Revolution--South Carolina waited until 1790. The New England states were the last to do so--New Hampshire in 1817, Connecticut in 1818, Massachusetts in 1833. But they were all gone before 1868.
True, but that was voluntary. Nowadays, though IANAL, state support for religion seems to be subject to federal control, though the limits of that are controversial and beyond my expertise.
One lazy summer, when I was an undergrad eons ago, some buddies and I played cribbage every evening. We decided Norm was the god of cribbage. Norm was a benign god; we were only required to sacrifice the occasional six pack of Miller High Life. Now that was a religion.
Had an acquaintance who tried to plead that every day when he "practiced" his religion when he went to stand in a trading pit. He was a "priest", and we were "worshipping" when the market was open. The IRS denied the claim for some reason.......
I would cautiously suggest that it would be a category error to group Islam with Christianity and Judaism, given its history and inextricably political component.
"Overrule Smith and you’re down in the weeds. This, I suspect, is why the overruling of Smith is less likely than many scholars, looking simply at doctrine, may believe. When it comes down to brass tacks, judges, or justices, are little more eager to make their lives and jobs harder than anyone else."
You know, one could only wish this were true. But it seems to me--and I hasten to point out, IANAL--that decisions that have more opinions than judges and that rely on future cases being decided by five-part balancing tests and the like suggest that it's...not nearly that simple.
As I see it, this is a public-choice issue: judges need to maintain their relevance, and if they were ever--God forbid!--start issuing simple, clear-cut decisions that didn't require all that...well, as I used to put it when people started talking about reforming procurement law, "if our job were simple, anyone could do it, and then we'd all have to find honest work!" :-)
Your comment has made me realize how much the legal profession is a very distaff group: they love to bring up issues, which they endlessly discuss in various contexts and with varying nuances, but never really addressing he issue and solving the problem at hand. Very much like a group of female friends discussing relationships. Of course, there is also what is akin to what you bring up: well defined, clear, concise judicial rulings would eventually put a lot of lawyers and judges out of work.
It seems to me that laws establishing "net zero" policies or other efforts to combat climate change constitute the establishment of a state religion. The self-updating spreadsheets that climate priests (or "scientists", as they're called in the climate church) use to model the future climate are just programmed with the tenets of the religion. When their models don't correspond to reality, they just "correct" the historical input data and re-run the model until its output gets somewhere near current reality. The error bars on the forecasts are wide enough that any change-hotter, colder, wetter, drier, more storms, fewer storms, storms of greater or lesser intensity- all are consistent with what the model foresees. All of that seems more like religion than science to me.
It's time for the intellectually honest of the secular neutral public square advocates to recognize that the United States was not designed as a secular neutral public square. Christianity was baked in, and while other religions have the freedom to exist within the country, to the extent that exercise of the other religions contravene Christian principles and the common law, the exercise of the other religions can be constrained. Justice Joseph Story said it well:
..
The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age.
..
The states are allowed by the Constitution to regulate religion, and the provisions in the state constitutions requiring adherence to certain religious principles are not constitutionally suspect. This whole stupid mess began with US v. Reynolds (1879), when Morrison Waite crafted a lazy, outcome-oriented opinion to defeat Mormon polygamy. He's the one that brought the infamous "separation of church and state" into our vernacular on the Free Exercise side. That meant different things to different people at the time (See Phillip Hamburger's book, Separation of Church and State), but it sure didn't mean what it means now, which is hostility to Christianity by the state.
Waite committed judicial malpractice with his weak legislative history angle, cherry-picking Jefferson's statement made 13 (?) years or so after the ratification of the Bill of Rights, and Jefferson wasn't even in the First Congress. He was the ambassador to France when the Bill of Rights was debated and drafted. Of all people instrumental to the founding of our country, Jefferson's 13 year-latent irrelevant point of view on the 1st Amendment, which has become completely twisted now? The current jurisprudence is built on a ridiculous house of cards. It needs to be knocked down and built on a proper foundation, like SCOTUS did with the 2A.
My reasoning goes Iike this: despite wishful modern thinking, it is impossible to think logically without accepting something as true at root, without evidence. This is why we have Euclid's postulates (at least one, the 5th, has been shown to be false in our universe by General Relativity). There is no better word for, "what is believed without evidence" than "religion." (And religion can be very logical; Christian religious scholars make the same distinction between doctrine and theology that mathematicians make between postulates and theories. Disagreements about the truth of doctrine should not be confused with being illogical) So the citizenry of a democracy would not be sovereign if the State could dictate what postulates upon which to base their thinking. I read into the fact that the First Amendment could have been 4 separate amendments but weren't something about their severability: they aren't 4 different rights, but 1 right from 4 different perspectives: the right to pursue the truth you choose, the right to speak that truth to others, the right to use technology to communicate that truth, and the right to assemble with others who share that truth. They are all different perspectives on the right to be yourself.
I find a much more challenging problem that of the Church of Satan. They don't believe in Satan literally, they have adopted Satan's aspects from Christian traditions, which they don't believe in, only to annoy Christians in an act that would be seen as bigoted if the target weren't Christians. And it seems entirely motivated by a political belief that Freedom of Religion is just some kind of dodge to justify what they see as immoral acts (not being a Progressive, I guess). I, obviously, take it a lot more seriously. The questions you raise are important, but only if Freedom of Religion itself is taken seriously, and I think many don't.
At a party late in the '60's, I was ordained a minister in the Universal Life Church. Even though we were fully loaded with '60's style party favors, the ordainer and I realized that this was better treated as a joke, rather than as a potential vehicle for low rent fraud activities. I did not change my mind when I sobered up.
Most people today, including a lot of judges, do not understand what the term "establishment of religion" meant in the 1700s. Most European countries had "established" churches--official churches, favored by the government; in many countries, other churches were banned. Even most of the American colonies had established churches--the Church of England in New York and the southern colonies, the Congregational (previously known as the Puritans) in New England.
In England, Wales, and Ireland, the Church of England had both power and special privileges. Bishops and archbishops of the Church of England had seats in the House of Lords, the upper house of Parliament. In order to hold any public office, you had to take Communion in the Church of England; for a long time, you had to be in the state church even to vote. In Ireland in the 1700s, if you wanted to be legally married, you had to have the ceremony in an Anglican church; this and other oppressions were a factor in the mass emigration of Presbyterian Ulster Scots to the American colonies between 1715 and 1775 (later called Scotch-Irish to distinguish them from the Catholic Irish who came to America during the potato famine of the mid-1800s).
When the Bill of Rights was added to the Constitution, the decision was made not to have an official, "established" church in the United States. And over time, the older states that did have them "dis-established" them. And the new states that sprang up in the western settlements didn't even bother about it.
Indeed; so “By providing that government couldn’t be used to advance or repress particular religions” needs to have “federal” inserted. The actual text of the First Amendment, which most of us (including the Supreme Court) get wrong nowadays, is “*Congress* shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” States were left free to advance their established religions until the Supreme Court rewrote the First Amendment using the Fourteenth as a pretext.
The 14th Amendment had nothing to do with ending established churches in the states. It was adopted in 1868--and all of the states had abandoned established churches well before that. Most of the southern states ended church establishment during the Revolution--South Carolina waited until 1790. The New England states were the last to do so--New Hampshire in 1817, Connecticut in 1818, Massachusetts in 1833. But they were all gone before 1868.
True, but that was voluntary. Nowadays, though IANAL, state support for religion seems to be subject to federal control, though the limits of that are controversial and beyond my expertise.
One lazy summer, when I was an undergrad eons ago, some buddies and I played cribbage every evening. We decided Norm was the god of cribbage. Norm was a benign god; we were only required to sacrifice the occasional six pack of Miller High Life. Now that was a religion.
Had an acquaintance who tried to plead that every day when he "practiced" his religion when he went to stand in a trading pit. He was a "priest", and we were "worshipping" when the market was open. The IRS denied the claim for some reason.......
I would cautiously suggest that it would be a category error to group Islam with Christianity and Judaism, given its history and inextricably political component.
"Overrule Smith and you’re down in the weeds. This, I suspect, is why the overruling of Smith is less likely than many scholars, looking simply at doctrine, may believe. When it comes down to brass tacks, judges, or justices, are little more eager to make their lives and jobs harder than anyone else."
You know, one could only wish this were true. But it seems to me--and I hasten to point out, IANAL--that decisions that have more opinions than judges and that rely on future cases being decided by five-part balancing tests and the like suggest that it's...not nearly that simple.
As I see it, this is a public-choice issue: judges need to maintain their relevance, and if they were ever--God forbid!--start issuing simple, clear-cut decisions that didn't require all that...well, as I used to put it when people started talking about reforming procurement law, "if our job were simple, anyone could do it, and then we'd all have to find honest work!" :-)
Your comment has made me realize how much the legal profession is a very distaff group: they love to bring up issues, which they endlessly discuss in various contexts and with varying nuances, but never really addressing he issue and solving the problem at hand. Very much like a group of female friends discussing relationships. Of course, there is also what is akin to what you bring up: well defined, clear, concise judicial rulings would eventually put a lot of lawyers and judges out of work.
It seems to me that laws establishing "net zero" policies or other efforts to combat climate change constitute the establishment of a state religion. The self-updating spreadsheets that climate priests (or "scientists", as they're called in the climate church) use to model the future climate are just programmed with the tenets of the religion. When their models don't correspond to reality, they just "correct" the historical input data and re-run the model until its output gets somewhere near current reality. The error bars on the forecasts are wide enough that any change-hotter, colder, wetter, drier, more storms, fewer storms, storms of greater or lesser intensity- all are consistent with what the model foresees. All of that seems more like religion than science to me.
It's time for the intellectually honest of the secular neutral public square advocates to recognize that the United States was not designed as a secular neutral public square. Christianity was baked in, and while other religions have the freedom to exist within the country, to the extent that exercise of the other religions contravene Christian principles and the common law, the exercise of the other religions can be constrained. Justice Joseph Story said it well:
..
The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age.
..
The states are allowed by the Constitution to regulate religion, and the provisions in the state constitutions requiring adherence to certain religious principles are not constitutionally suspect. This whole stupid mess began with US v. Reynolds (1879), when Morrison Waite crafted a lazy, outcome-oriented opinion to defeat Mormon polygamy. He's the one that brought the infamous "separation of church and state" into our vernacular on the Free Exercise side. That meant different things to different people at the time (See Phillip Hamburger's book, Separation of Church and State), but it sure didn't mean what it means now, which is hostility to Christianity by the state.
Waite committed judicial malpractice with his weak legislative history angle, cherry-picking Jefferson's statement made 13 (?) years or so after the ratification of the Bill of Rights, and Jefferson wasn't even in the First Congress. He was the ambassador to France when the Bill of Rights was debated and drafted. Of all people instrumental to the founding of our country, Jefferson's 13 year-latent irrelevant point of view on the 1st Amendment, which has become completely twisted now? The current jurisprudence is built on a ridiculous house of cards. It needs to be knocked down and built on a proper foundation, like SCOTUS did with the 2A.
My reasoning goes Iike this: despite wishful modern thinking, it is impossible to think logically without accepting something as true at root, without evidence. This is why we have Euclid's postulates (at least one, the 5th, has been shown to be false in our universe by General Relativity). There is no better word for, "what is believed without evidence" than "religion." (And religion can be very logical; Christian religious scholars make the same distinction between doctrine and theology that mathematicians make between postulates and theories. Disagreements about the truth of doctrine should not be confused with being illogical) So the citizenry of a democracy would not be sovereign if the State could dictate what postulates upon which to base their thinking. I read into the fact that the First Amendment could have been 4 separate amendments but weren't something about their severability: they aren't 4 different rights, but 1 right from 4 different perspectives: the right to pursue the truth you choose, the right to speak that truth to others, the right to use technology to communicate that truth, and the right to assemble with others who share that truth. They are all different perspectives on the right to be yourself.
I find a much more challenging problem that of the Church of Satan. They don't believe in Satan literally, they have adopted Satan's aspects from Christian traditions, which they don't believe in, only to annoy Christians in an act that would be seen as bigoted if the target weren't Christians. And it seems entirely motivated by a political belief that Freedom of Religion is just some kind of dodge to justify what they see as immoral acts (not being a Progressive, I guess). I, obviously, take it a lot more seriously. The questions you raise are important, but only if Freedom of Religion itself is taken seriously, and I think many don't.
At a party late in the '60's, I was ordained a minister in the Universal Life Church. Even though we were fully loaded with '60's style party favors, the ordainer and I realized that this was better treated as a joke, rather than as a potential vehicle for low rent fraud activities. I did not change my mind when I sobered up.
This is the kind of issue lawyers love: It all depends on what the meaning of is is....