Wednesday, November 22, 2017

+34: Establishment Clause Fun With The Supreme Court

Here is a quote from Lemon v. Kurtzman

The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.

Seriously? The language of the "Religion Clauses" of the First Amendment seems to me much more acceptable than this. Is it avoidable seeing this like somebody trying to confuse himself because of psychological motive?
"an establishment of religion" refers to what is established by religion or established as an extension of it. It is not a reference to the result or consequences of the law in question in themselves . If they wanted the latter they could have said "establishment of religion" or "establishing religion". They also did not say "an establishment for religion".  The singularity form used, the "of" suggesting belonging and how the action of respect does not fit being directed at what is being created at the same time, all points to this meaning. 
Based on the last part in the quote above, it seems that even things like giving to the poor or taking care of people in general could be in violation of the establishment clause if they lead to significantly inspiring people to be more religious because religion calls for that. No wonder the court talks about difficulty in taking the establishment clause in absolute sense. It first traps itself with a wrong understanding leading to such generalization then justify violating the real meaning through the difficulty of following that. Based on the correct understanding, one do not need to seek an exception to see that Congress laws in the directions above do not violate the clause because those things themselves are not establishments of religion. The resulted respect to establishment of religions because of the increased following do not make the actions in the mentioned examples violations to the establishment clause because they were not directed toward the affected  establishments of religion. 
You think the establishment clause is insufficient for the purpose of preventing the government from establishing religion? Then you can add your own Amendment. But a law wouldn't be respecting an establishment of religion just because it result in establishing religion. That is because, unlike a word like "honoring" for example, "respecting" imply a difference in the state of the affecting thing (the law) in that direction and that is the measure that was used here regardless of the change that happens to the status of the affected establishment.           

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