Establishment Clause: What's the test -- separation or neutrality?

The Supreme Court's June 30th decision in Espinoza v.Montana Department of Revenue:exposes the weakness of the Bill of Rights, namely, its vagueness. With respect to Espinoza, it's the vagueness of the religion Clauses that allows justices to interpret them according to .their own world views.

In the First Congress -- on June 8, 1789 -- Representative James Madison (Va.) proposed a bill of rights. A House committed on which Madison served considered his proposals, made some changes and the House its version of a bill of rights. The Senate took up the House bill and made some modifications. Madison served on the House-Senate conference committee and insisted on the House's version of the First Amendment. Senate negotiaters accepted the House's version of the First Amendment in exchange for some of its wording in other amendments. The states ratified ten of Congresses twelve proposals on December 15, 1791, including the religion clauses of the First Amendment:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ...

Madison promised during the ratification process of the Constitution that he would propose a bill of rights to fill a void that many felt was lacking in the Constitution.

The First Congress was very busy establishing a new form of government, leving little time for lower priority bill of rights. Tho there is little recorded of the committees discussions, one thing is clear that the Establishment Clause meant much more than prohibiting Congress from establishing a national religion. We know this because that proposal was voted down in the House committee.  Similarly, a proposal prohibiting Congress from enacing a law anything "touching religion" was likewise voted down. 

Where does that leave us as to the meaning of the Establishment Clause? Specifically, what does "an establishment of religion mean??

Textualism does not guuide us in interreting the Establiysment Clause because of its vaguendess. Secifically, "an establishment of religion" was not a phrase with establishmed meaning in 1789. What is clear, at least to me, is "an" is broad rather than narrow.

By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty, July 11, 2020

Justice Breyer flip-flops on time makiing a wrong right

Justice Gorsuch, writing for the majority in McGirt v. Oklahoma, said today: "Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right." 

I agree with both the Court's decision in McGirt and Justice Gorsuch's statement. Fifteen years ago, Justice Breyer, who signed on to Justice Gorsuch's opinion, had a different view in Van Orden v. Perry (2005). Justice Breyer concurred in the judgement in Van Orden, joining four Christian nationalist justices in holding that a 1961 Fraternal Order of Eagles Ten Commandments monument on the grounds of the Texas State Capitol did not violate the Establishment Clause because it had been on the Capitol grounds for 44 years. 

In other words, in Van Orden, Justice Breyer opined that a wrong (i.e., a religious monument on public property) should be allowed to stay (i.e., go uncorrected) because the passage of time is an alchemy for making a wrong right (or, simply, let sleeping dogs lie). Hypocrisy at its finest -- in the Supreme Court of the United States. 

Bottom line: the Van Orden v. Perry decision is a blatant example of Christian privilege and needs to be reversed. It has resulted in 120 Eagles Ten Commandments monuments remaining on public property in violation of the First Amendment. 

By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty, July 9, 2020