|
onceburned -> RE: Same-sex marriage (5/20/2005 4:39:19 PM)
|
quote:
The original intent of the "idea" was to ensure that no state would have a state religion.
Yes, the establishment clause of the First Amendment does not use the phrase "separation of Church and State". Apparently, the phrase had its roots in a letter that President Jefferson wrote to the Danbury Connecticut Baptist Association in which he advocated "building a wall of separation between Church and State".
The establishment clause is an idea - it is not a law. It is imprecise and needs to be interpreted and the Separation of Chuch and State is an interpretation that is rooted in judicial decisions since the early days of the United States. This is not necessarily a bad thing - the doctrine of Balance of Powers between the Executive Branch, the Legislature and the Judiciary is also not in the Constitution. It is a tradition of our country that has evolved over the past 200 years.
And it is a tradition that recognizes that religion can not be fully separated from the government.
quote:
With this in mind, it is important to note that throughout history, religion has not been kept wholly separate from the institutions of state. In fact, Congress, in conjunction with the Treasury, maintains the stamp "In God We Trust" on the currency of the United States, and the Judiciary is yet to ban the closing to the Pledge of Allegiance, which proclaims that America is "one nation under God."17 Such religious interventions prevent the Judiciary from taking a bright line approach with Establishment Clause cases, noting that "an absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the Court."18
Accordingly, the Court has taken an ad hoc approach to cases involving the Establishment Clause, reviewing the surrounding circumstances in each case individually.19 "The Establishment Clause, like the Due Process Clauses, is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause 'was to state an objective, not to write a statute.'"20 Therefore, "the line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test."21 This is because the Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."22 Because of this inability to create a bright line rule, courts have sought to discover a way to determine whether a challenged law or conduct is in violation of the Establishment Clause.
The 10 Commandments plaques and sculptures are disallowed in courthouses because "for a practice to survive an Establishment Clause challenge, it 'must have a secular legislative purpose, . . . its principal or primary effect must be one that neither advances nor inhibits religion, . . . [and it] must not foster an excessive government entanglement with religion.'
http://www.expertlaw.com/library/misc/first_amendment.html
|
|
|
|
