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Old 03-11-2010, 09:04 PM
Erls Erls is offline
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Default Separation of Church and State - at what level?

So, this question popped into my head a little while ago.

At what level of America is the separation of church and state illegal? At all levels? At only the Federal level? Or somewhere in between.

According to the Constitution (Article 6):

"no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States".

AND

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Now, one way to read this would be to read it as only applying to the Federal government. If that is the case, then states and local communities are free to let religion play a role in their governance, provided they are not discriminating against anyone because of religion (Article 6) or establishing/prohibiting religion (First Amendment). With those two exceptions in mind, states and communities would be free to:
- Offer religious classes in schools, provided no one is forced to take it and there is a way to teach classes about more than one religion should the demand for other such classes come about
- Include language like "In God We Trust" on Courthouses (as numerous religions believe in a god, and that message is not establishing, prohibiting, or discriminating against any belief
- Let religious morals impact laws, provided those laws do not take away any other right stated in the Constitution

Here is where this gets interesting, in my opinion. Our Supreme Court seems to cherry pick how the Constitution, and more importantly the Bill of Rights, governs the many states. In some instances, such as with the First Amendment, it has consistently upheld the supremacy of the Constitution. However, in other areas such as the Second Amendment, it has allowed states and even communities to further regulate the right in question.

So, if states are allowed to regulate firearms (for example) provided they do not outright ban them, then why are states not allowed to interact with religion provided they do not discriminate/prohibit/establish a religion outright?
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Old 03-12-2010, 08:11 AM
yguy yguy is offline
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There is no reasonable construction under which 1A can be applied against the states. The rest of the BoR was held, incorrectly in my view, to be similarly devoid of redress against state infringement of the rights therein enumerated in Barron v Baltimore in 1833.
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