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naraburns  nihil supernum  2yr ago (text post)   32430 thread views

Culture War Roundup for the week of October 31, 2022

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The US had this fight over prayer in schools, etc. It was thoroughly resolved in favor of separating church and state.

I'd be truly shocked to see it happen again on a larger-than-county scale. Both teams are hypersensitive to the topic, or were 20 years ago.

But then again, I have yet to witness a land acknowledgment in person, despite attending school in Oklahoma. So perhaps I don't have any perspective for what people are willing to do.

It is already happening. Just quietly enough for the people claiming it's not happening to switch to "and it was good" before they're ever confronted about it.

I don't follow.

Is that supposed to refer to me? Because I'm firmly disestablishmentarian, with no intention of switching.

Where is this already happening?

The US had this fight over prayer in schools, etc. It was thoroughly resolved in favor of separating church and state.

This is, by the way, one of those decisions that would seem completely absurd to the founders of the country. They very much did not believe that US constitution demanded separation of church and state (even if they personally believed it would be desirable). For example, when the US Constitution was passed, Massachusetts literally had state religion. From Massachusetts constitution of 1780:

Art. III. As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffcused through a community but by the institution of the public worship of God and of the public instructions in piety, religion, and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.

Not only requiring prayer in school was allowed in Massachusetts, in fact in 1791 Massachusetts passed a law that literally required Sunday church attendance (to be fair, this was never enforced). There was really no question about the constitutionality of this: at the time, the bill of rights was understood to apply mostly to federal, not state governments. The current jurisprudence is very much dependent on 14th amendment, and the incorporation doctrine.

Well, yeah. Add it to the long list of reasons why I'm not an originalist.

The decision would only seem absurd to the founders because they didn't have the 14th. Given that we added it, incorporation is legally sound. I'm sure some founders would object to it as federal overreach, but that's a values disagreement, not a sign of incoherence.

Yes, I did not mean to imply that the current doctrine is incoherent or is standing on the shaky basis (as did, for example, Roe v Wade decision, or still does most of the federal regulatory apparatus based on the unintended interpretation of interstate commerce clause). My point was simply that separation of church and state, contrary to what many people seem to believe, has not been one of the founding principle of this country, and in many states, quite the contrary.

I'd say current Establishment Clause doctrine is approximately as foundationless as RvW and other misadventures, though at least Lemon is now actually dead rather than zombie-doctrine. Properly speaking, the Establishment Clause ought to be a dead letter in practical terms, though technically existing in a legal sense. It's also one of the clauses that makes no coherent sense to apply to the states via 14th Amendment incorporation (unlike much of the rest of the Bill of Rights).

Per the original sense of the phrase and, you know, its actual words, the Establishment Clause stood for two things: first, the federal government was specifically barred from recognizing an established national church; and second, the federal government was barred from interfering--pro or con--in the decision of any state to recognize an established state church, or de-recognizing an established state church. Everything else hung on the Establishment Clause is without a legitimate foundation. Yes, the Supreme Court disagrees with me; it is wrong.

It's practically speaking a dead letter now because the state practice of recognizing a state church--though widespread at the Founding--fell out of favor over the next few decades. No state has had an established church for about 200 years, and the practice is well well outside the Overton Window everywhere in America (and properly so, sorry British people).

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