The Establishment of Religion Clause -- my narrow interpretation.

[MarkD]

Within the last couple of days, one of my Facebook friends posted something that was implicitly disapproving of the new law passed in Louisiana that all public schools must display the Ten Commandments. The purpose of this thread is not to elaborate on what I said, at first, about that topic, but to repeat part of the dialogue that occurred later on.
I had said: "I have a much narrower interpretation of the Establishment Clause of the 1st Amendment than the SCOTUS has been coming up with for much of the 20th Century."
A guy, who's a stranger to me by the name of Ralph, asked me: "Mark, what is your 'narrower reading' of the Establishment Clause?"
I replied to Ralph: "First of all, there's the obvious rule that the federal, state, and local governments are not allowed to adopt an official religion (which many of the other countries in the world do), or initiate a new religious denomination. Secondly, the federal, state and local governments are prohibited from 'passing the buck' of their governmental powers to any church or religious organizations. Law-making powers, law-enforcing powers, and law-interpreting powers must be exercised only by the legislative, executive, and judicial branches of the various levels of government in the US, not by any churches/religious organizations. But I cannot think of any reason to say that the Establishment of Religion Clause would mean anything more complicated than those two rules. This narrow set of two rules is much narrower than some of the overly grandiose rules that the SCOTUS has announced in some of its rulings, and even narrower than the way a lot of lay people try to squeeze out of the Clause."
Ralph replied to me: "Mark, you've got the basics of the EC exactly right. What SCOTUS has had to do over the years is interpret how it applies in various situations that on their face don't fall precisely into one of those two categories.
"This Louisiana law is yet another. By posting the tenets of one religion in a public building—particularly a school with minor children, who are especially impressionable and vulnerable—the state is explicitly giving priority to Christianity and implicitly encouraging schoolchildren to do the same. That's a clear violation of the EC's prohibition on establishing a state religion."
Then my most recent reply to Ralph, which has apparently ended the conversation, was: "I am not going to agree with you or anyone else -- including any set of Supreme Court Justices -- who tell me that it is unconstitutional for the federal, state, or local governments to 'giv(e) priority to Christianity.' IMO, that is a *complicated* rule of law, or a complicated major premise, and I simply don't think it's necessary to fulfill what our Founding Fathers meant by the Establishment Clause. I also see nothing logical about being concerned about the impressionability of children regarding what the EC does not allow -- as if the EC was adopted even more so for the sake of children than for adults. You must remember that the 1st Amendment -- indeed, the entire Bill of Rights -- was adopted only for the purpose of controlling the federal government, and was not originally used to control the state/local governments. Requiring the states to respect 1st Amendment principles did not become a rule of law until after the adoption of the 14th Amendment. See Barron v. Baltimore, 1833, and Palko v. Conn., 1938.
"I expect I am always going to be in disagreement with courts of law, and common, ordinary lay people, who try to explain what they think the EC means that is more *complicated* than the two rules I described above. Sorry."

I'm rather pleased with myself, for how I stated my interpretation of the Establishment of Religion Clause.

[politicallefty]

I could not disagree more. The Founders placed the Establishment Clause as the first part of the First Amendment. When interpreting the Constitution, we must first always give meaning to the text itself. "[...] [N]o law respecting an establishment of religion [...]" does not imply that actions by the government short of official establishment are constitutional. With that logic, the government could establish an official religion in all but name. I believe that would violate both the text and the intent of the Establishment Clause. It does not simply disempower the government from establishing an official religion, but also from enacting laws that have the effect of respecting any establishment of religion.

I think there are legitimate points to be made with respect to the full reach of the Establishment Clause with respect to the Free Exercise Clause. I think it is the role of the judiciary to harmonize those two principles.

[MarkD]

I have always been able to understand the point of freedom OF religion -- freedom of religious beliefs. But I have always had extreme difficulty with understanding freedom FROM religion. (By "always," I mean since I was a junior in high school, going back to 1980.)

Is it unconstitutional for the words "under God" to be included in the Pledge of Allegiance?
Is it unconstitutional for the words "In God We Trust" to be printed on US currency?
Is it unconstitutional for any level of government to use the Gregorian Calendar, including that, if and when a government agency has a reason to refer to events over 2000 years ago, it does so with the letters "B.C." (as in, the year 125 B.C.), or to refer to events under 2000 years ago with the letters "A.D."? Or is it unconstitutional to refer to certain days of the week with the names Tuesday, Wednesday, Thursday, and Friday, given that those names are based on the names of certain gods in Norse mythology?
Is it unconstitutional for any public prosecutors to plea bargain with accused criminals, since there bears a strong resemblance (probably not coincidental) to Christian belief in being merciful towards those who confess their sins?
And what do you think of the Court's ruling in 1983, Marsh v. Chambers?
Here are some very interesting comments that Prof. David P. Currie, in "The Constitution in the Supreme Court, The Second Century, 1888-1986." Currie said this after he praised the Warren Court's jurisprudence on the Establishment Clause in the school prayer and Bible-reading cases.

The Marsh opinion and the history on which it relied suggest more than the relatively trvial conclusion that legislatures may appoint chaplains. They cast more than a little doubt on Everson's basic theory that the clause forbids evenhanded government promotion of religion. If the state may sponsor prayers in the legislatures, it is not obvious why it should not be able to do so in the schools. Possibly, as Justice Reed had belatedly argued in his dissent in McCullom, the amendment forbade only the establishment of a particular denomination after all.