, when the Supreme Court first interpreted the constitution’s bar on laws “respecting an establishment of religion”, the justices consulted Thomas Jefferson. The First Amendment erects “a wall of separation between church and state,” the third president had written in 1802.
The battle over the church-state line is no less divisive—and even more muddled—70 years on. Prayer in school was tossed out in the 1960s. Stand-alone nativity scenes inside government buildings were struck down in the 1980s. But other Biblical verses, crosses and menorahs in the public square have won the court’s blessing. On one day in 2005, the Supreme Court upheld a Ten Commandments monument near a capitol building while rejecting another outside a courthouse.
When the Fourth Circuit Court of Appeals ruled against the cross in 2017 it invoked a precedent set in, a 1971 ruling that states could not pay the salaries of teachers at private Catholic schools in Pennsylvania. Justice Antonin Scalia once likenedto a “ghoul in a late night horror movie” that just won’t die. At the Sumpreme Court hearing Justices Neil Gorsuch and Brett Kavanaugh both professed a desire to drive a stake through its heart.
Late in the hearing, inklings of possible compromise came from Justices Elena Kagan and Stephen Breyer. In 2005, Justice Breyer had found it “determinative” that 40 years passed before anyone raised an objection to a Ten Commandments display in Texas. His vote saved that monument. Likewise, the historical context of the Peace Cross counts, he said.
A third way could avoid bulldozed crosses while respecting America’s religious diversity—as Justice Ginsburg pointed out, 30% of the country now identifies as something other than Christian. Gregory Lipper, author of a brief criticising the cross, thinks Justice Breyer’s proposal could form the basis of a deal between the liberal justices and Chief Justice Roberts; it may, he says, ward off “more grievous harm.
I think there can be a case made for embracing aspects of Judeo-Christian moral traditions and symbolism without embracing Christianity the religion as an element of a state, just as Christians in theory can live peacefully in a Islamic-majority country according to the Quran.
The First Amendment *does not* specify a “separation of Church and State.” It merely says the State can’t pick one religion over another, nor can it prohibit the active practicing of any faith.
Separation of church and state is not in the constitution. Second, the idea was freedom OF religion. Not freedom from religion. You have a right to be or not be religious. But you don't have the right to try and force your anti religious sentiment on everyone else.
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