What is a "law respecting an establishment of religion" under the First Amendment? Charles Edward Lincoln, III,, 4:10 PM The 1559 Book of Common Prayer, adopted by Parliament under the leadership of Queen Elizabeth I, established Moderate "Middle Way" Protestant Anglo-Catholicism as the State Religion of England & Wales. Everything contained in that Book of Common Prayer is an ASPECT of Religion and hence its adoption by Parliament, or Congress, or any State is a "law respecting an establishment of religion." [I have a modest proposal and it involves answering this question: how much behavioral content do the words "religion" and establishment "cover"? Could we now accurately interpret and meaningfully paraphrase the establishment clause "Neither Congress nor the states shall make any law regarding any of the behavior covered in the Administration of the Sacraments or other Rites and Ceremonies of the Christian Church?" or even "Neither Congress nor the states shall make any law regarding lifestyle choices or philosophy?" Could it be that the entire Regulatory-Welfare State was and remains expressly forbidden and unconstitutional?"] The First Amendment is without any doubt the most powerful of all the Amendments, indeed, quite possibly, all the clauses of any part, of the constitution. The U.S. Supreme Court, it seems to me, has focused an inordinate amount of time focused on "School Prayer" and "Teaching Evolution vs. the Bible" and similar subjects in its "Establishment" and "Free Exercise" jurisprudence over the past 50-70 years. It is almost as if "Religion" is only relevant as an academic exercise, and for that reason, only the "teaching" of religion---the transmission of certain "epiphenomenal" beliefs about the creation of the world or how to commemorate the mechanisms of creation, is in any sense relevant to the constitutional question. 1
I have been thinking a lot about it, and it seems to me that the word "establishment" should be taken in what---to the Framers of the U.S. Constitution in 1787-1792 at least, must have seemed the most relevant historical context of this word "establishment"---and I have never seen the U.S. Supreme Court discuss this issue at all. At the Accession of Elizabeth I, in 1558-1559, the Queen of England and her Parliament agreed on a Book of Common Prayer and an Act of Uniformity which, without any doubt at all, "Established" the Church of England and made non-conformity a crime, albeit a very minor misdemeanor. (Failure to attend the Bishop-Governed, i.e. "Episcopal" Church every SUnday was then and there made subject to a fine of 11 pence.)**** THOSE LAWS, my friends, the 1558-1559 adoption by Parliament of the Book of Common Prayer and the enactment of the requirement of Church Attendance punishable by a fine were LAWS RESPECTING AN ESTABLISHMENT OF RELIGION. See inter alia: http://justus.anglican.org/resources/bcp/1559/bcp_1559.htm As with so many books, it is the subtitle that gives the critical information we need to know: the full Title and subtitle of Queen Elizabeth I's "Coronation" BCP together read "The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church of England." I want to make a radical proposal here: any subject, repeat ANY SUBJECT, which was treated under the "Administration of the Sacraments and Other Rites and Ceremonies of the Church of England" is a "Law Respecting an Establishment of Religion." The teaching of the Bible is covered by the Book of Common Prayer. Accordingly, one supposes, teaching of the Bible in Public School, if authorized by statute, might well be the result of a "Law Respecting an Establishment of Religion." But what of the actual "Sacraments and Other Rites and Ceremonies" of the Church of England? The subject of the sacraments is the orderly cradle-to-grave organization of life. Each of the sacraments is 2
what anthropologists call "Rites des Passages" marking certain boundaries or "limnal moments" in life: birth = baptism, coming of age as an adult= communion + confirmation, marriage, major decisions about how to live life (= assumption of Holy Orders), reconciliation with one's self and society after "sin" (= confession/reconciliation), and extreme unction (= death, last rites). Could it be that the Founding Fathers actually meant and intended, in 1792, to forbid the United States Federal Government from involving itself in ANY "cradle-to-grave" programs involving the orderly structuring of life from cradle-to-grave? Was this the true meaning of "religion" and/or any "law respecting an establishment of religion"? "Re-ligio" in Latin means something like "rebinding" or "binding-well"---"ligare" is a verb etymologically related to "lis" or "litis" as in "binding litigation" and "lis pendens"---a "lis" was a string or rope. I.E., "Religion" is something obliging people to do certain things in certain ways. Perhaps what "religion" really means is "life style" or in particular, an ordered, well bounded, lifestyle..."walking the straight and narrow path" or words to that effect. If so, if "religion" meant (and still means) "life-style choices", then the First Amendment in effect forbids the social welfare state---and I don't believe anyone has ever raised this point before, either as an historical truth or even an hypothesis to be tested linguistically or by comparison with the writings of Samuel Johnson, David Hume, Adam Smith, Edmund Burke, William Hazlitt, or any other English Philosophers and writers of the late 18th Century, much less any of the Founding Fathers of the USA---but I propose that this is a meritorious hypothesis which ought to be explored. Equating the word "religion" with "lifestyle" and translating any "law respecting an establishment of religion" as "any law concerning the ordering or structured command of lifestyle" would be and in fact is a very radical, radical idea, by which I mean it cuts to the very root of things (going back to Latin again "radix = root"). Defining "religion" as "life-style" might explain, for example, why I always (analytically but also somewhat instinctually) tell friends of mine in the "Landmark" program that "Landmark" is really their "Religion"--- 3
Landmark is one of those "secular" philosophies or "life-style choices" which orders its adherents' lives completely. Did the Founding Fathers wish to PREVENT the Federal Government from Ordering peoples' lives completely? I think, in the context of the First Amendment, this makes a GREAT deal of sense. So, if the phrase "Congress shall make no law respecting an establishment of religion" could be paraphrased "Congress shall make no law respecting an ordering or structuring of individual personal lifestyles or philosophies", or even more narrowly "Congress shall make no law respecting any kind of behavior described by or relevant to the limnal moments in life or rites des passages described or constrained in the phrase "administration of the sacraments and other Rites and Ceremonies of the Church of England", then most of what government does is illegal under the First Amendment, because the "nanny state" has become horribly intrusive into every American's everyday life. After the Civil War, the Thirteenth Amendment was passed to abolish slavery or involuntary servitude "except as punishment for crime" and the Fourteenth Amendment was passed, at least in part, to apply (or, as the Supreme Court and legal scholars like to say, "incorporate") the Bill of Rights to the States. NOTHING in 20th Century Jurisprudence at the Supreme Court of the United States has been more clear or consistent than the proposition that ALL clauses of the First Amendment were forcibly "incorporated" to apply to the States in or by the Fourteenth Amendment. For inexplicable reasons, the Seventh Amendment has perhaps faired the worst of all the amendments, in that the Supreme Court has ruled more than once that the states need not "incorporate" trials-by-jury into every civil proceeding, but the Fourth, Fifth, Sixth, and Eighth Amendments have all been held as "incorporated" to the States by the Fourteenth, though sometimes with less vim and vigor than the First. The Status of the Second Amendment remains ambiguous, as does the continuing vitality of the ninth and tenth amendments, which are showing slightly renewed "life" in recent years, albeit a little bit too little too late to save either state or individual sovereignty in any meaningful way from...of all things...the vast encroachment of the Welfare State. 4
Earlier this year, there was a minor and very temporary explosion of discussion and major news coverage concerning whether School Prayer at a Public High School Graduation in south Texas near San Antonio constituted "State Action" or not. An arrogant United States District Judge for the Western District of Texas (the first jurisdiction ever to disbar me...) threatened Jail for Contempt of Court to any student or school administrator who led the student body in prayer. Very briefly, I had wished I were back in Texas. If I had been there, I would have advocated and recommended absolutely informed defiance of this Judge. This not so very honorable U.S. District Judge for the Western District of Texas, San Antonio Division, should have been placed squarely in the position of deciding whether to jail something close to the entire student body/faculty/and audience of the graduation ceremonies. Now THAT would have been a true "Tea Party" moment in the spirit of the original Boston Tea Party, and of civil disobedience of the finest kind. I strongly suspect that Rick Perry and all the other wee sleekit cowerin' tim'rous beasties of the Texas Republican "Tea Party" movement would never have had the nerve to do anything quite this "revolutionary". And oddly and ironically enough, the May 2011 Texas Graduation Day Prayer Showdown was averted precisely when Texas State Governor Rick Perry and Texas State Attorney General Greg Abbott championed the "prayers" of that particular South Texas High School. Perry and Abbott came down on the side of praying, and they all together "prayed" to the United States Court of Appeals for the Fifth Circuit. Then and there a panel of the U.S. 5th Circuit, sitting in the John Minor Wisdom Courthouse on the river (south) side of Lafayette Square on Camp Street in New Orleans (just opposite a building where Lee Harvey Oswald used to live, back before 11-22-63) determined that the U.S. District Judge was wrong. The Fifth Circuit decided, once Governor Perry and Attorney General Abbott had intervened, that no "State Action" was involved in the School Prayer at Graduation. This outcome makes sense, in context, to anyone with advanced alzheimer's or dementia, but only if you think about it, so everyone in Texas breathed a sigh of relief. During even that brief time, who knows how many Texas Child Protective Service workers invaded homes and recommended families 5
for highly intrusive "governmental service plans". The number might be countable, but who knows how many Temporary Orders by Texas District Judges or "Baby Judges" (as the Honorable Laura Livingston once described herself before she became a District Judge in Travis County) in Family Courts were issued in how many new divorce or dissolution cases, awarding temporary custody of children and splitting families irrevocably apart. I propose that, in particular, the First Amendment to the Constitution prohibits both the Federal Government and (through the Fourteenth Amendment) the States, from "establishing" any regulations relating to any of the subjects covered by the Book of Common Prayer in England in 1558-9 or 1662 (http://justus.anglican.org/resources/bcp/england.htm and http:// www.eskimo.com/~lhowell/bcp1662/index.html) or even 1789 in the new United States (http://justus.anglican.org/resources/bcp/1789/bcp_1789.htm). I further propose that the true meaning of the First Amendment is absolutely to guarantee both freedom of conscience and freedom of personal individual lifestyle choices and behavior, to the extent that the Modern Regulatory-Welfare State is incompatible with the First Amendment to the Constitution, above all else which may be said about the Unconstitutionality of the various statutes and regulations which have brought this Regulatory-Welfare State into existence. ****(In Elizabeth's time there were 12 pence ["pennies"] in every old English Shilling, 24 pence in a Florin, 30 pence in a Half-Crown, 60 pence in a Crown, and 240 pence [20 shillings, 10 florins, or 4 crowns] in the Pound Sterling until A.D. 1969. Although I was by then only a summer visitor with my grandparents in England, rather than a resident with my parents, I remember that summer and the transition to the new currency vividly. For that reason [and inspite of the inspirational moon landing] 1969 is accordingly a year which shall live in infamy in my own mind and memory and the memory of many Patriotic and Sentimental Brits and people of British heritage and descent---the adoption of the decimal system was a much more cowardly precursor to the U.K.'s entry into the Common Market/European Community than anyone at the time 6
ever realized). Above all, I challenge Governor Rick Perry and everyone else who pretends to care about Religion in the United States to address this question, and to admit that the prohibition against any "law respecting an establishment of religion" means that the debate must expand FAR, FAR beyond the boundaries of education, public prayer, private prayer, or the teaching of evolution, or even the school lunch consumption of ham or bacon sandwiches. It is time to publicly debate and answer the question: must government be banned forever from ALL activities regarding the regulation or control of the human life-cycle, from cradle-to-grave? Is this the true meaning of freedom? Meanwhile, in Texas, the trivial pursuit games go on unabated... Judge tosses attempt to stop Texas prayer rally Jul 28, 2011 By APRIL CASTRO - Associated Press AP Thu, FILE- In this June 23, 2011 file photo, Texas Gov. Rick Perry speaks during the 28th HOUSTON (AP) A federal judge dismissed a lawsuit that sought to stop Gov. Rick Perry from sponsoring a national day of Christian prayer and fasting, ruling Thursday that the group of atheists and agnostics did not have legal standin g to sue. U.S. District Judge Gray H. Miller said the Freedom From Religion 7
Foundation argued against Perry's involvement based merely on feelings of exclusion, but did not show sufficient harm to merit the injunction they sought. "The governor has done nothing more than invite others who are willing to do so to pray," Miller said. Rich Bolton, who argued for the group, said he was considering an appeal. "I wonder if we had a Muslim governor what would happen if the whole state was called to a Muslim prayer," said Kay Staley, one of five Texas residents named as plaintiffs in the suit. "I think the governor needs to keep his religion out of his official duties." Staley said she would be at the prayer rally to protest. The Freedom from Religion Foundation argued in the lawsuit that Perry's involvement in the day of prayer and fasting would violate the First Amendment's establishment clause. The event, which is called The Response, is scheduled for Aug. 6 at Houston's Reliant Stadium. A day earlier, Perry defended the event, comparing it to President Barack Obama's participation in thenational Day of Prayer. "My prayer is that the courts will find that the first amendment is still applicable to the governor no matter what they might be doing and that what we've done in the state of Texas or what we've done in the governor's office is appropriate," he said. "It's no different than what George Washington or Abraham Linlcoln or President Truman or President Obama have done." Perry, an evangelical Christian, said he didn't yet know what his role in the rally would be. "I'm going to be there I may be ushering for all I know I haven't 8
gotten my marching orders," he said. "It's not about me and it's not about the people on the stage either, this is truly about coming together as a state lifting up this nation in prayer, having a day of prayer and fasting. That's all it is." The group, which unsuccessfully sued to stop Obama's National Day of Prayer earlier this year, filed the case on behalf of 700 members in Texas and called on the court to stop Perry from participating in the meeting or using his office to promote or recognize it. Perry invited the Obama administration, the nation's governors and Texas lawmakers to attend the event. The Republican governor is moving closer to jumping in the race for the White House. The event is being sponsored by several evangelical Christian groups, including the American Family Association, which has been criticized by civil rights groups for promoting anti-homosexual and anti-islamic positions on the roughly 200 radio stations it operates. The foundation said it does not oppose politicians taking part in religious services, but that Perry crossed a line by initiating the event, using his position as governor to endorse and promote it and by using his official website to link to the organizer's website. The plaintiffs also contend that Perry's use of Texas' official state seal to endorse the event and his plans to issue an official proclamation violate the Constitution. An appellate court in April dismissed the group's previous lawsuit against the Obama administration over the National Day of Prayer, on which people of all faiths were invited to take part. Like Miller, the three-judge panel in that case ruled that the group could not prove that they had suffered any harm when the president issued a proclamation observing the day. 9