Wednesday Writs: War on Christmas Edition


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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49 Responses

  1. In my view the best way to think about the establishment clause especially if you’re skeptical, is to imagine the establishment or endorsement of a faith that is not your own.Report

    • Avatar dragonfrog in reply to michaeljdavis24 says:

      Absolutely! Anyone who would object to having their legal disputes considered in a courthouse where the judge sits below a plaque with the five pillars of Islam or to picnicking under a statue of Baphomet on the Oklahoma capitol grounds – they get it, they just may or may not cop to getting it when it comes to whether Christianity should get the same considerations.Report

    • Avatar George Turner in reply to michaeljdavis24 says:

      Did Congress pass a law funding the nativity scenes? If not, then we should be good.

      When the establishment clause was passed, several states still had government funded churches, and those weren’t disestablished in some states until after the second great awakening in the early to mid 1800’s. The First Amendment\s provision is more easily read as a guarantee that the federal government won’t intrude on the states by making them all agree on one religion, so that Episcopal states didn’t have to wrestle with Congregationalist states in the halls of Congress. Under that reading, the establishment clause conveys no personal right and thus shouldn’t be incorporated under the 14th Amendment.Report

      • If the government is using its resources to endorse a specific faith, that’s the threshold for endorsement. George, would you be just fine with an American courtroom having the five pillars of Islam etched on the wall? Report

        • Avatar George Turner in reply to michaeljdavis24 says:

          Sharia courts are common in Europe and Canada, so I guess that’s inevitable here, too.

          The historical precedent of the existence of established churches in several of the states, one until the 1830’s, would indicate that as long as the courtroom was a state court and not a federal court, even a sectarian religious display could pass muster.

          Some of these establishment issues cropped up again in the late 1800’s with the debates about admitting Utah. Such issues might reappear if the Supreme Court ever gets a Protestant justice to add at least a small bit of diversity to the current religious makeup, which is more reflective of the demographics of Renaissance Rome than the US.Report

          • You lost me at “Sharia courts are common in Europe and Canada.”Report

            • Avatar George Turner in reply to michaeljdavis24 says:

              Well, it’s a pretty hot topic that sometimes flares up in Ottawa and European capitals, with one side arguing that sharia is incompatible with civil law, others arguing that not recognizing sharia law is government control and censorship of religion, others arguing that only religious bigots are opposed to sharia law, or that sharia is actually just a way of life.

              In Britain there’s a push to grant Muslim women the same rights they enjoy in Islamic countries, or that British women enjoy, since in Britain many Muslim women have to go to sharia councils (there are 85 of them) to adjudicate things like divorce.

              And of course irate Muslims often protest for the imposition of sharia law to non-Muslims, but they’ll have to increase their numbers for to vote that in.Report

          • Avatar Chip Daniels in reply to George Turner says:

            Since the First Amendment only mentions the Federal government:

            Can California tax religious property then?
            Can Los Angeles obligate parochial schools to offer abortion services to their students?

            Just trying to map out the boundaries here.Report

            • Avatar Jaybird in reply to Chip Daniels says:

              Yeah, this was my argument for why vouchers ought to be able to be used for Catholic Schools. It’s not the government doing the religion thing, it’s the citizen themselves. Indeed, telling them that they cannot use the voucher for Catholic Schools is, in effect, prohibiting the free exercise thereof.

              The argument persuaded fewer than I’d have liked.Report

              • Avatar Chip Daniels in reply to Jaybird says:

                The catch with all these “religious liberty” things is that Christians are moving from the majority to the minority.

                So all the things that citizens are allowed to do- like invocations, holiday banners, clubs- will be less and less Christians doing them, and more and more seculars/ Muslims/WhatHaveYou doing them.

                So like Christian citizens paying taxes which support Tet festivals, tax vouchers going to Islamic madrassas, children coming home singing songs to the Goddess Gaia.

                Because it was never intended to be this way; “Religious liberty” in most forms was intended to allow the Christian majority to use the power of numbers to overpower all other faiths.Report

              • Avatar Jaybird in reply to Chip Daniels says:

                I don’t know whether to root for the Christians who will be saying “if we couldn’t, then you shouldn’t be able to” or rooting for the non-Christians who point out that celebrating Culture is different from celebrating religion and people shouldn’t be prevented from celebrating their culture.Report

              • Avatar Pinky in reply to Chip Daniels says:

                No. Religious liberty was never conceived to help the Christian majority. It developed in a culture that was nearly all Christian, and related to disputes between denominations. And it was never intended for the majority. At all. How would that even work?Report

              • Avatar Chip Daniels in reply to Pinky says:

                I mean in the way that the term is being used today.

                It is being used to allow the majority to discriminate against the minority.

                For example religious bakers to refuse to print messages that offend their faith or religious pharmacists to refuse to fill prescriptions that offend them.Report

              • Avatar Jaybird in reply to Chip Daniels says:

                Yeah, Steven Crowder had a bit where he visited Muslim bakeries and asked them to make a gay wedding cake and they turned him down.

                We need to have a system where people aren’t allowed to do that.Report

              • Avatar Chip Daniels in reply to Jaybird says:

                What’s funny is, your second sentence is what conservatives say in sarcasm, but liberals say in earnest.Report

            • Avatar Aaron David in reply to Chip Daniels says:

              California has its own free speech protections:

              (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

              Not sure about the taxes of religious property, but as far as offering abortion services, it would fail under the above speech law and the fact that slavery is no longer legal, try as you might.Report

            • Avatar Marchmaine in reply to Chip Daniels says:

              Not since the 14th amendment passed.

              George’s reading is, um, anachronistic.Report

              • Avatar George Turner in reply to Marchmaine says:

                It’s anachronistic, but is it wrong? Brennan had big problems with the current interpretation, as does Justice Thomas. In Elk Grove v Newdow (2004) Justice Thomas in part II of his concurrence presents an argument against the current view, saying in part:

                The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” Amdt. 1. As a textual matter, this Clause probably prohibits Congress from establishing a national religion. But see P. Hamburger, Separation of Church and State 106, n. 40 (2002) (citing sources). Perhaps more importantly, the Clause made clear that Congress could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause. See A. Amar, The Bill of Rights 36—39 (1998).

                Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from “abridging [particular] freedom[s].” (Emphasis added.) This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. See, e.g., 2 J. Story, Commentaries on the Constitution of the United States §1873 (5th ed. 1891); see also Amar, The Bill of Rights, at 32—42; id., at 246—257. History also supports this understanding: At the founding, at least six States had established religions, see McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1437 (1990). Nor has this federalism point escaped the notice of Members of this Court. See, e.g., Zelman, supra, at 677—680 (Thomas, J., concurring); Lee, supra, at 641 (Scalia, J., dissenting).

                Quite simply, the Establishment Clause is best understood as a federalism provision–it protects state establishments from federal interference but does not protect any individual right. These two features independently make incorporation of the Clause difficult to understand.

                Indeed, there’s almost no way to reason a path from the text of the Establishment Clause to any of the currently popular penumbras of it. It is far more probably that a protection against “encountering” a different religion wouldn’t even have occurred to any of the Founders, and that if such a protection is desired, it should be made afresh either through legislation or state constitutions.Report

  2. Avatar Oscar Gordon says:

    WW7: Dude! Just let it go! If you can not convict the man fairly, then you don’t have a case.Report

  3. Avatar Jaybird says:

    WW2: There was a period there when law schools, in an effort to not close during a drought, relaxed standards allowing students to go there who might not have made the cut a decade prior.

    I’m wondering if this is one of the fruits of that particular decision or if this is merely a happy coincidence.Report

  4. Avatar Aaron David says:

    WW9 – And Carlos Danger has name jealousy.Report