Thursday, August 26, 2010

Constitutional Provision by David Barton

Today, the ability to enjoy “the free exercise of religion” and to participate in traditional religious activities is completely subject to the discretion and “good will” of the Court rather than to any constitutional provision. The following cases will illustrate not only the Court’s reliance upon its own recent case-law, but also its avoidance of historical citations that would tend to establish original intent. Abington v. Schempp, 1963

In Abington, 2 the Court struck down the official use of the Bible in public education. Although the Court cited several pre-1947 cases in examining procedural questions, the count is still heavily skewed toward recent precedents. PRE-1947: 112; POST-1947: 356. Epperson v. Arkansas, 1968

This case 3 challenged an Arkansas statute which made it unlawful for schools to teach “that mankind ascended or descended from a lower order of animals.” 4 The U. S. Supreme Court ruled the statute violated the First Amendment. On what sources? PRE-1947: 6; POST-1947: 12.

However, the Arkansas law which the Court struck down in this case was identical to the one that the Tennessee Supreme Court had upheld in the 1927 Scopes decision. Since the U. S. Supreme Court was in effect overturning the Tennessee Supreme Court decision of forty-three years earlier, it had been forced to reexamine that 1925 case, thus injecting several pre-1947 allusions into its decision. When these references are added, the final tally becomes: PRE-1947: 23; POST-1947: 16. Board of Education of Central School District v. Allen, 1968 In this ruling, 6 the Supreme Court found that a New York law requiring public school authorities to lend textbooks to private schools and thus possibly to religious schools was not a violation of the Constitution. What was the basis of this decision? PRE-1947: 8; POST-1947: 27. Lemon v. Kurtzman, 1971

In this case, the Court struck down two State statutes: a Rhode Island law providing a salary supplement to nonpublic teachers if the “eligible teachers agree not to teach courses in religion,” and a Pennsylvania law which allowed the State to purchase “secular educational services” including textbooks and instructional materials from nonpublic schools if the materials contained no “religious teaching, or the morals or forms of worship of any sect.” Despite the attempt to limit the State aid to purely secular aspects of education, the Court struck down both laws under what is now called the “Lemon Test.” Under this test, a public religious activity is constitutional only if: 1 it has a predominately secular purpose; 2 it neither inhibits nor advances religion; and 3 it creates no “excessive entanglement” between government and religion.

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