Two notes:
First of all, once again I point out that DavidB’s opinion about separation of church and state vis-a-vis the First Amendment (or, more properly in this case, the Fourteenth Amendment’s selective incorporation of the Establishment and Free Exercise clauses into due process) is not the law of the land. Government is not required to be completely religion neutral, let alone forced to avoid the issue of religion entirely. David believes it should be otherwise; his comments should be taken in that context.
Which is not to say that forcing schools to promote the message that “In God we trust” isn’t violative of established constitutional law. Applying the normal Lemon test (named after the case Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)), we look first to see if the purpose of the state action is primarily religious, then whether it has a primarily religious effect, finally whether or not it excessively entangles government in religious matters. In applying this test, let me first point out that, while one could assert that any mention of God must have a religious purpose, that concept of this issue has been rejected by the Court.
Does the requirement passed in Mississippi have a primarily religious purpose? One presumes the Legislature there has covered this issue by making a series of findings that show that there is a secular need for some effort to establish a more ‘moral’ climate, yadda yadda. In general, the Court will not look behind the findings recited by a legislative body on this sort of issue. And, under past case interpretations, it is unlikely that the Court would find that the effect of posting “In God we trust” on walls, etc. would be religious. After all, application of this prong didn’t preclude the Court from allowing a nativity scene in Lynch v. Donnelly, 465 U.S. 668 (1984), wherein the majority found only an “indirect, remote, or incidental” benefit to religion. Finally, it would be hard to argue that posting such a phrase ‘excessively entangles’ government in religion, when provisions establishing Christian holy days as holidays as well as laws establishing Sunday as a day off have not.
Of course, the Court might not apply the Lemon test. Justice O’Connor, who has shown some substantial power in molding majorities on the Court recently, advocates a different test, based on whether the state action should be viewed as endorsing religion. Of course, Ms. O’Connor has yet to convince four justices to join her in applying such a test, and it is not likely that she can switch the vote of Justice Kennedy to join her in application of this test. Under such a test, of course, it would seemingly be hard NOT to invalidate a mandate that the school voice it’s approval of the concept of a God. On the other hand, Justice O’Connor is adept at re-formulating her tests as needed to reach a specific result, so I wouldn’t be laying bets down even if she did manage to drag in Justice Kennedy.
Finally, let me address the philosophical argument underlying the OP and subsequent posts. Obviously, even if it isn’t unconstitutional under the law as developed, that doesn’t mean it shouldn’t be unconstitutional. But the First Amendment’s religion clauses have to be viewed carefully. Clearly, the framers of those clauses did not intend them to mandate a total absence of religion in government, whatever Mr. Jefferson may have thought; witness the fact that the national and state legislatures have always had invocations to start sessions, and even the original federal government had some religious influence in its doings. A more reasonable interpretation of the meaning of the clauses originally is that the national government was not supposed to try and favor one religion or church above any other, either by prefering one or by hindering the practice of any religion. Thus, a Catholic in Maryland didn’t have to worry that the national government, dominated by Anglicans, would freeze him out of participation in the federal aspect of the country. Extension of this principle to the states after adoption of the Fourteenth Amendment should not be surprising.
But there is a significant difference between a rule of law that allows a generally religious society from keeping its government from preferring a particular religion and a rule of law that requires a government to avoid any entanglement with or endorsement of religious concepts. When David says that “Because it’s the government doing it, which means a government endorsement of religion – which takes away the rights of those who don’t believe in the “God” they proclaim “trust” in…” his underlying assumption is that, as a resident of the US, he has a right to have his government be areligious, totally uninterested in the concept of religion. But we don’t HAVE such a right, at least not written into our Constitution. Those who seek an areligous government need to obtain such a right before we can expect to avoid actions such as we see in Mississippi.
