Re: Church-State -- some history

From: John W Burgeson <>
Date: Sun May 16 2004 - 11:05:40 EDT

I wrote: "The Post Office posters clearly did favor one "brand" of
religion (Theism, and , by implication, Christianity) over all others."

That is why I assert that it is not unreasonable to see those posters,
because they are placed in a gov't facility, as contrary to the 1st

George wants to talk about "strict" and "loose" "extrapolations" of the
amendment and about the pledge. Both are outside the narrow range of my

Blake suggests "interpretation" rather than "extrapolation." I like that
better, but it is word-smithing. Either is descriptive.

George write: " The 1st Amendment does not say that the state cannot
favor belief in
God over non-belief in God, which is all the poster does. (The
you mention is something you may or may not choose to make.) "

The implication/interpretation George refers to IS one I choose to make.
To limit the amendment as George apparently wishes to do has all the
implications of wooden biblical literalism.

In similar discussions on this subject, the objection to my statement
just above is that we are free to amend the constitution to state any
desired implication/interpretation plainly. Perhaps, in an ideal state,
this would be possible. It is neither possible nor practical in ours. And
so we have our beloved/hated court system, ending with SCOTUS.

Is SCOTUS perfect and w/o error? Hardly.

Are they at least consistent? No.

Are they a "good" solution? Again, no.

Are they the best solution of all the solutions we've been able to
invent? I think the answer here is, clearly, yes. Others may differ

.George: " It says only that there can be no "establishment of religion"
in the sense in which that term was understood at the time."

True. Scholars differ, of course, just what that phrase meant to various
Founders. And scholars also differ in their ideas of how the Founders,
individually or collectively, would see the Post Office example. That
does not relieve us (the courts in this case) from making a decision. In
this case, they said "take the posters down." It is altogether possible
that some day SCOTUS will rule on that case, and it is also possible that
at such a time there will be a ruling that the posters are OK (I hope

One might argue that the case is trivial; that the posters are
inoffensive. I don't think so. Suppose the posters were slightly changed.
Instead of saying "In God We Trust," They said "In the gods we trust."
Would we, as Christians, be at least a little uncomfortable with such

Suppose they said "In Allah we trust." Or "In Zeus we trust.". Or "In the
God as worshipped by the XXX church we trust?"

I had written: "As I say above, I disagree. "Strict" reading or not, the
posters are out of bounds."

George disagreed, writing: "Sorry, this just isn't true. You are not
limiting consideration to what the exact language of the Amendment meant
at the time it was written & adopted. & as I note in the following, you
don't have to. But if you
don't, you aren't adopting a strict construction."

I think you read into my two word statement more than I said. Both can be
true because they are not necessarily tied to gather. But I could have
been more clear.

George wrote: " I find it mildly amusing that there is such a
disjunction between the way many people apply strict or loose
construction to the 1st & 2nd Amendments."

Yeah. Me too. But that is off topic.

George wrote: " I don't think "under God" in the Pledge of Allegiance is
unconstitutional but I could very well live without it."

Of course it is not "unconstitutional." It is just a pledge. Voluntarily
recited (or not), just a pledge. Say it however you wish. Nobody will
take you to jail either way. Of course, if you leave out the "under God"
in some settings, someone near you may hit you upside the head! <G> And
good luck suing them in some venues.

The unconstitutional issue comes about when the pledge (with or w/o
"under God") is made mandatory for persons who are compelled by law to be
asked to recite it (school children). A copy of Billy Gobitas's letter in
on my website; SCOTUS ruled that he must recite it, even though it
violated his belief system. It took four years for SCOTUS to figure out
what they had done was a monstrous injustice.

In any case, the pledge is, again, off the narrow topic of posters in
gov't facilities.

Blake wrote: "Historically, there have been several interpretations and
the interpretation has changed repeatedly. As a
result, First Amendment jurisprudence is currently a mess and one can
argue the establishment clause and free exercise clause are partially in
substantial disjunction from one another."

Probably an understatement. Anyone who studies the cases I referred to
earlier quickly comes to that conclusion. I don't see it becoming any
clearer in the future.

Blake again: "... a different questions, would such a poster in a post
office be considered some sort of "endorsement" of religion by the
government in the eyes of the postal customer who sees the poster. That
is a far way down field and an
entirely different set of questions from what the Amendment says. Of
course, these may be reasonable interpretations to effectuate a purpose
of the Amendment, but how do you determine the purpose? Burgy and I will
disagree and I am more in line with George... ."

No problem with disagreements, of course; that's what makes this LISTSERV
interesting. I would point out, in the above, that determination of
"purpose" might not be the important factor as much as determination of

I illustrate that point with a personal story. It is elementary school,
1942. I'm in 5th grade. WWII has just begun. The principal has determined
that God needs to be a more prominent part of our schooling.

So far we can all agree with that.

She begins a practice of reading from scripture at every assembly,
generally making some point about the war and our cause against the
enemy. "God is on our side," she says, and who wants to disagree with

She quotes from Jesus often, alluding to his divine nature as an
authority figure. See any problem with that?

Two of my good friends did. they were Jewish. They were compelled to be
in that school and were compelled to listen to religious teachings which
violated their belief system. Not is a "study situation," but in a
"preaching/exhortation session."

Her "purpose" was just fine. Her "effects" were not. They were

Blake also writes: " One can say that the Constitution is a living
document, but what does that mean? Does that mean what I think the
document should mean is what it means and the Supreme Court should vote
accordingly? You have to, as in scriptural
matters, have some interpretive principles. There are massive
disagreements about this and the pastiche that
is used of original intent folks like Scalia (or Bork) is often not an
accurate portrayal of what those sorts of folks say. Likewise, someone
like Brennan may not be as utterly wooly headed make it up out of whole
cloth as Douglas admittedly was. However, the questions about how you
interpret are real. To throw out any caring about what the words meant
to the framers and what their intent was is to IMHO toss out any sense of
the rule of law and to introduce huge countermajoritarian difficulties in
the polity."

I have read what both Scalia and Bork have written. They turn my stomach.
I have an ongoing (friendly) disagreement with a former pastor of mine
who thinks Bork's "Slouching towards Gommora" is one of the greatest
books he ever read while I regard it (I have read it twice) as possibly
one of the most dangerous. Scalia's dissent in the creation-science
SCOTUS case is almost classic conservative mumbo-jumbo.

"huge countermajoritian difficulties?" Probably. But the genius of this
country is that the majority cannot override the rights of minorities.
And this does present difficulties. So be it. Comes with the territory.

"What the framers meant" is one input to the debate. "What the framers
would say in the present situation" is another (much more subjective, of
course). What we think about the issue is another input. The framers
thought a person with black skin was 3/5th of a person. That's what they
meant. We don't accept that today; we think we know better. No -- we KNOW
we know better.

George spoke of amending the constitution. Do we really want a
constitutional amendment saying it is either OK (or not OK) for Gov't
offices to post religious posters? Can you visualize how complex that
amendment might be? Silly.

Blake: " I would suggest Burgy that you read those cases striking down
all sorts of labor protection laws and see if you agree
that the constitution is a living document in the way that the "Four
Horsemen" read the Constitution to mean. I would suspect, strongly, that
you would vociferously disagree with their analysis of the reality of
life and their interpretation of the living

Possibly. I have not studied that part of SCOTUS in any depth; the 1st
amendment cases I have studied (as part of an ethics course at Iliff two
years ago). I confess to not even knowing who the "Four Horsemen" were (I
assume four SCOTUS members in the 30s.

It is not too difficult to read the cases I have and be in disagreement
with one side or the other. I started reading such cases, BTW, with the
creation science case of the late 1980s. I began by wondering why SCOTUS
did not rule for the YECs -- it seemed obvious their case, even granted
their science was bogus, was in the right. I came away from reading the
opinions that the case had been decided correctly and that the
conservative opinions were without serious merit.

I think it was about that time that I realized that the Republican party
had left me. But that is another topic.

As always, I appreciate the dialog with two people I consider to be good


Ubi Caritas

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Received on Sun May 16 11:07:45 2004

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