Guinastasia, when the Bill of Rights was first enacted, it applied only to the federal government. State governments were restricted by bills of rights in their state constitutions. It took a constitutional amendment to apply the Bill of Rights to the states: the Fourteenth Amendment.
Yguy’s argument appears to be that the Supreme Court erred in concluding that the Fourteenth Amendment means that the First Amendment now applies to the states.
Yguy’s argument seems circular: “the first amendment only protects those rights at a federal level”; therefore he’s saying that the Fourteenth Amendment–which explicitly places restrictions on what states can do with regard to the fundamental rights and liberties of citizens (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)–can’t be held to have extended First Amendment restrictions on the federal government to state and local governments, because the First Amendment only applied to the federal government. Well, yes, it’s clear that the First Amendment, as written, only placed restrictions on the federal government, and not on state or local governments, but I don’t quite follow the reasoning whereby yguy rejects the idea that the Fourteenth Amendment doesn’t restrict state governments (and local governments, which are merely creatures of state governments and derive their powers from the constitutions of the states and the actions of state governments) from infringing on the rights of the citizens. On the face of it, that would appear to be exactly what the Fourteenth Amendment does do, and I’m somewhat at a loss to figure out what the Fourteenth is there for, if not to extend some level of restrictions on the powers of state governments and/or protections of the rights of citizens with respect to state governments (which are simply two different ways of saying the same thing).
Of course, I’m just as happy that I can’t be tried for heresy by my state government, or thrown in jail for criticizing the governor.
I did misspeak somewhat in my last post. The right of free speech is protected at a state and local level by the fourteenth amendment as well as the ninth and tenth.
However, the fourteenth amendment does not specify which rights it protects. Since there never was a right to live in a state which does not respect an establishment of religion, there is no way that amendment can protect it in and of itself.
That would be all of them:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
Among prohibiting an abridgement of priveleges and immunities
the prohibition of depriving persons of life, liberty, or property
and the prohibition to deny any person equal protection
I would find any number of ways to perceive that the government of each state is prohibited from interfering with any rights of its citizens. In fact, I would find it odd if it enumerated any particular rights. Do you figure that the states still possess the lawful power to restrict speech or assembly?
I don’t know that they had it even before the fourteenth amendment. I never said they did. I said those rights were not protected at the state level by the first amendment. Such protection could possibly be inferred from the ninth and tenth amendments. However, there is nothing in the fourteenth amendment which prohibits any state from legally respecting an establishment of religion, since doing so is not an inherent violation of anyone’s right of free exercise.
I assume that the free exercise of religion clause would be “incorporated”, but the establishment clause would not be?
I think this reflects a common (but I would say mistaken) notion that there is some great “tension” between the two religion clauses of the First Amendment–that one “protects a freedom”, while the other is “restrictive”. In fact, they both protect individual liberty, and they both do so by restricting the power of government. The individual citizen’s free exercise of religion may not be infringed upon, nor may the individual citizen’s rights of conscience be violated by being forced to support a religious establishment with which he does not agree; the government’s power (even the powers of a democratically elected represenative government) is restriced in that it may not violate the individual citizens’ rights by abridging their free exercise of religion or by compelling them to support religious establishments foreign to their own beliefs. (The citizens are also protected from having their religious practices interfered with by having them become “established” and thus subject to the oversight of legislators who may not even share the beliefs of the religious body or bodies in question.)
Free exercise and no establishment are simply two sides of one right.
That is the problem with the “doctrine of incorporation”. It improperly incorporates a governmental restriction along with inherent rights.
No, they are both restrictive. The intent of the establishment clause was not to separate religion from government entierly - as evidenced by the many states which initially countenanced one religion explicitly - but to avoid enslaving the populace to one religious doctrine.
That protection is inherent in the establishment clause combined with the freedom to travel. If you lack the wherewithal to prevent your state from adopting a religion inimical to your beliefs, you can move to another state.
As long as the electorate can fire such legislators, I don’t see why it’s an issue.
You think there is a right to live in a state or locality the government of which is devoid of religion?
Do you actually think such a thing possible? Do you think Stalin’s regime was irreligious? I would say that it was devoutly religious, in the same sense that Torquemada was.
Why is it so terribly shocking to want government to be devoid of religion? Government has many admirable purposes–such examples as forming a more perfect union, establishing justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, and securing the blessings of liberty to ourselves and our posterity come to mind–but the saving of souls (or the helping of souls to achieve nirvana, or the freeing of minds from the bonds of theist superstition) is not among them.
Ah, the classic totalitarian argument–“there is no neutrality”, so since there has to be an established religion, it might as well be ours!
I agree that Stalin’s regime was hardly neutral with respect to religion, but that doesn’t mean that religious neutrality is either impossible or that we should not seek it. In fact, the whole Stalin argument is a complete non sequitur. No one here is holding up Stalin’s Russia as a model of church-state relations, so why are you bringing it up? The constitution of the Soviet Union under Stalin avowedly guaranteed freedom of conscience and freedom of religious worship, while in fact religious believers were persecuted; the Soviet Union also claimed to hold elections, which were in fact a farce. Are free and fair elections therefore impossible, and an unworthy goal for a free society to seek, because a bunch of Communists falsely claimed to conduct them?
Fortunately we don’t have to choose between Stalinism and al-Qaeda. I assume the latter is what you are advocating…oh wait, you say don’t want the world to be governed by al-Qaeda? I’m confused–I’m an advocate of church-state separation, and also an secular humanist, therefore I’m automatically a Stalinist; you’re an opponent of church-state separation, and apparently a Christian, so naturally you’re automatically a supporter of al-Qaeda. Right?
It could hardly be shocking to me, since the idea is at least 40 years old. Now how about answering the question?
You think there is a right to live in a state or locality the government of which is devoid of religion?
I do not advocate that sort of conversion by indoctrination. I don’t particularly care whether every courhouse has a ten commandments monument. I’m saying there is nothing in the Constitution that prohibits that sort of thing at a state level.
I don’t know how totalitarian that argument is, but what’s wrong with it?
Why should we?
Because you are drawing a distinction between religion and ideology that seems specious. Stalinist Russia is perhaps the most extreme example there is, but I doubt you can point to an example of a government which is devoid of religion. One which has apparently tried for such neutrality is Holland. Having stood for nothing beyond the idea of liberty as license, they appear to be ready to fall for Sharia law. Similarly, Canada, which is utterly intolerant of “hate speech” against homosexauality, is preparing to adapt its justice system so as to be able to judge its Muslim citizens by Islamic law.
IOW, it does not appear that an ideological vaccuum is a realistic possibility, except in a perfectly sealed chamber in which nothing can live.
This is evidently meant to be a parody of my reasoning. Unfortunately, you have not sufficient understanding of my reasoning yet to effectively satirize it.
Kindly produce the quote from which you have drawn this silly inferrence.
You’re gettting your knots in a short over nothing, sport. 
Government should be legally oblivious as to whether or not a given concept, book, phrase, institution, symbol, location, or person is “religious” or not. Ten commandments, eightfold paths, koans, and so forth should be allowed in places and circumstances where they would be appropriate on the basis of content since if you treat them differently in a negative way because they are “religious” you are doing something just as inappropriate as enshrining them because they are “religious”.
Admittedly, it is not always easy to determine whether the presence of, say, the Ten Commandments in front of an Alabama courthouse is due to admiration for the precepts thereof, or perhaps the relevance of the document to the long history of law, or are instead due to the fact that they are enshrined within certain solidly-established religions. But it should not be argued that nothing which has the bad fortune to be embraced by a religion should be permissible in a state-sponsored venue.
In America, we are guaranteed freedom OF religion, which is not necessarily the same thing as freedom FROM religion.
Let the student change his major if he wants to be subsidized.
The discrimination is against his major, not him.
Uh, ours? Certainly there are people like, well, you, that want to see it become more religious, but for the most part its secularity has been a great strength, allowing religion to flourish in civil society.
No. As I pointed out earlier, the line between religion and ideology in this context is blurry.
Not really. I just see the attempt to scour every last vestige of religiosity from government as a religious crusade.
On the contrary, I’d suggest that the obsession with maintaining 501c3 status has been a big factor in turning most churches into limp-wristed social clubs which stand for nothing.
Just for the record, the Bill of Rights was originally a restriction on the federal government only. It didn’t restict the states at all. Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833). If you think the incorporation doctrine is a bad idea, remember that you’re not just saying the Establishment Clause isn’t applicable to the states, you’re saying that states don’t have to abide by the 4th, 5th, 6th, 7th, and 8th Amendments either. Sure you want to do that?
This is confused. A secular state doesn’t mean that religious people with religious ideologies cannot participate. It just means that the state will have no hand in promoting a or any religion. This business is left to civil society. The problem with Stalinist Russia was not that it’s government was secular, but that there was no civil society wherein religious ideas could freely move.
Well, some of the people who are interested in getting government out of the religious business are religious people who recognize that it is in their best interests. Other people, like myself, think it is an important principle of limited government for it to not claim authorities better left solely in the hands of the public.
They can’t have it both ways. But the fact is, whatever YOU think about their message and operation, THEY and believers in general have had remarkable financial and spiritual success. Religion thrives and grows in the United States like almost nowhere else in the world.
So where exactly is the compromise between “every last vestige of religiosity” and a Born again President and Cabinet pressing their religious beliefs on the rest of us? Some would also call their behavior a “Religious Crusade”. Face it, our executive branch is embarrassed by liberty, they hide her for the sake of religion.
Yes, the anti-religious atheists, go too far. Most religions have at least a heritage of similar zealots that have gone too far.
Should the Ten Commandments be returned to the Atlanta Courthouse?
Absolutely not. Very few people know the difference between crimes and sins. Having the Ten Commandments in the Court building makes me think that the judge may not know that difference. My faith may not be blind, but I expect my Justice to be.
[hijack]
Is a plaque that says “Treat others as you wish to be treated” Religious? Common sense? or Natural Law?
Is there anyone that would not wish justice to be reminded of this regularly?[/hijack]
Itfire :
“Should someone be offended by a nativity crèche in front of a towns city hall?”
People have the right to be offended. There is no right to NOT be offended.
Depending on exactly how the law is written, this can be different than what the First Ammendment prohibits.
I don’t see how the plain language of the BOR supports the idea that it ever applied only to the federal government. Do you really think the double jeapordy clause was ignorable by the states? If the purpose of the second amendment was to maintain a well-regulated militia for the security of a free state, how could any individual state abridge that right?
In any case, that is irrelevant to whether the fourteenth amendment effectively extends the establishment clause to the states. You can’t get there from here…or perhaps I should say here from there.
I know what you mean. I’m saying that idea will never work in practice.
The implicit assumption here seems to be the common one that the tax exemption for religious organizations is in effect a subsidy. On the contrary, I view it as a natural consequence of the first amendment.
What has it succeeded at, besides giving religion a bad name?
As for the many religious ripoff artists, it is only their parishioners who have any business complaining about it, IMO. The government has no right to any of that money.
Er, it’s working right now. The fact that there are one or two numbskulls who don’t get it and occasionally make a big fuss over it doesn’t mean that it isn’t working just great.
Hmm, well the primary author of the first amendment didn’t agree with you on that one. But regardless, that’s not what I’m saying: as it currently stands, the tax exempt status exists because churches are supposed to be churches, not for profit businesses or PACs.
What the heck are you talking about? What does that have to do with the overwhelming success of religious practice here in the U.S., your insults against it to the contrary?