Sunday, February 5, 2012
Pot and kettle, church and state
I don't get this one. If the public schools rent out space to all comers who pay their bills and don't break laws during their meetings, it seems to me that excluding the churches' particular "type of activity" would be the act that violates the separation of church and state.
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Here's the reasoning:
ReplyDelete1. Under the First Amendment to the U.S. Constitution, Congress "shall make no law respecting an establishment of religion."
2. Under the Fourteenth Amendment to the U.S. Constitution, no State shall "deprive any person of life, liberty, or property, without due process of law."
3. According to the U.S. Supreme Court, one of the liberties protected by the Fourteenth Amendment is the liberty to live in a society that makes no law respecting an establishment of religion.
4. Thus, States cannot make laws respecting an establishment of religion.
5. The Courts have further held that the term "States" in the Fourteenth Amendment, includes local governments such as cities.
6. The Courts have further held that the term "law" in the Establishment Clause covers government activities such as the rental of public space and the granting of permits.
7. In the case of Lemon v. Kurtzman (1971), the U.S. Supreme Court held that a government action would be a "law respecting an establishment of religion" if: (1) the action lacks a secular purpose, (2) the action has the primary effect of advancing or inhibiting religion, or (3) the action results in an "excessive government entanglement" with religion.
8. Thus, any government action by a local government that fails the "Lemon test" shown above violates the Fourteenth Amendment.
9. In applying the "Lemon test," the Courts have been generally hostile to any government action that allows religious activity in a public space. This is why, for example, some courts have rules that it's unconstitutional to have a prayer before a football game between two public high schools. This is also why some courts have ruled that it's unconstitutional to have a prayer before the graduation at a public high school.
10. In this case, the churches probably argued that when they were meeting in the schools, they were acting in a purely private capacity with no support from the state. But the court probably decided that by granting them the license to meet, the local government was effectively "advancing religion."
11. Thus, the Court held that the decision to grant churches a permit to meet in public school buildings violated the Fourteenth Amendment.
If you have problems with any of the points in this chain of reasoning -- as I certainly do -- then you will have a better understanding of why: (1) so many Christians consider the Courts to be unfairly hostile to them, and (2) why the Supreme Court (and other courts) are not willing to put their arguments on C-SPAN.
Eric, you were implicitly arguing that the decision to deny a permit to the churches would violate the Equal Protection Clause of the Fourteenth Amendment. But the Court in New York would probably tell you that since the entire Constitution must be read to be consistent with itself, the Equal Protection Clause and the Establishment Clause must be read in harmony. Thus, if the only way to prevent a violation of the Establishment Clause is to prevent churches from meeting in public schools, then such a ruling will not violate the Equal Protection Clause.
ReplyDeleteThank you for this explanation.
ReplyDeleteThe "Lemon test" that you describe in points 7 and 8 of the first comment is where I trip over what New York is doing: to exclude the churches from participating in the rental opportunities (which the schools presumably extend to other organizations) would seem to me to have "the primary effect of advancing or inhibiting religion."
Maybe this is what you were saying in the second comment?
The Courts are probably looking at it like this:
ReplyDelete1. For a local government to allow churches to rent public schools and use them as places of worship would have the primary effect of advancing religion. It would also result in an excessive government entanglement with religion, as people might think that the local government was aligned with the churches.
2. Thus, for a local government to allow churches to rent public schools and use them as places of worship would violate the Fourteenth Amendment.
3. Thus, the courts must prevent local governments from acting in this manner.
4. It would be nonsensical to say that a court order designed to enforce the Constitution is somehow in violation of the Constitution.
5. Because the court's action is necessary to prevent a violation of the Establishment Clause, that action cannot be regarded as unconstitutional.