17 May 2014


Every time I read about "establishment of religion", I think of the word that is the title of this post, which delights all young children who discover it due to its aura as perhaps the longest word in the English language. It also bothered me at that age because of its double negative beginning (anti-dis), which seemed to me to be superfluous. It sort of is the longest word and it isn't. Those of you who are interested may consult these references: url1 url2 url3 url4 url5. Now go back to work.

Stanley wanted to know how a case about the operations of the town council of Greece, NY* wound up in the august precinct of our black robbed elders and betters. The answer is relatively simple. The laws of the United States allow a plaintiff who has sued a person in order to vindicate his civil rights and who has won his case, to recover his attorney's fees and costs from the defendant. If the plaintiff loses the defendant is not entitled to any reimbursement. The situation therefore is heads - I win, tails - you lose.

If a very strong case is brought the defendants incentive is to cave in and minimize the damage, but if the case is weaker, the defendant can easily see each round as double or nothing and hope that the expense will kill the plaintiff.

Further, in this case much of the work was put in by 3rd parties on an ideological quest of their own. The circuit court opinion lists the counsel as: Americans United for Separation of Church and State for Plaintiffs-Appellants, and Alliance Defense Fund for Defendants-Appellees. Nonetheless, if Greece had lost they would have been required to pay a bill from Americans United, so they kept appealing until they won.

*Greece NY is a real place. It is a suburb of Rochester NY, and has a population of almost 100,000. When I was a freshman in college in a previous millennium, I had a roommate who hailed from there.


As for the substance of this case. I think the Court reached the correct result, but for the wrong reason. The religion clause of Amendment 1 says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;". Now this case involved no claim of prohibition of free exercise, so the relevant words are the first 10.

The meaning of that phrase should not be obscure. The Bill of Rights was not included in the first part of the constitution sent to the states 1787, because the draftsmen believed the power of the Federal Government to be so limited by the structure of the constitution as to make it incapable of abuse. In the back and forth over the adoption of the constitution, the sponsors offered the Bill of Rights to allay the concerns of opponents that the new Federal Government would become oppressive.

The first clause of Am. 1, was intended to confirm that the Congress would not do what the British Parliament had done, and establish a church. In England the Church of England was established by law, the monarch is the Supreme Governor of the Church of England. Parliament approved its liturgy and the text of the scriptures that it used. The laws penalized "recusants" -- persons who worshiped in congregations that were not part of the established church.

The provision was not intended to apply to any body other than Congress. The states were free to establish churches and at least two states, Massachusetts, and Connecticut, maintained established churches for a generation after the Bill of Rights. Galloway was correctly decided because the States are not bound by the establishment clause. It is a restriction on the power of Congress that was intended to protect the powers of the States in the sphere of religion.

How did the Supreme Court come to impose secularism on the organs of State governments like schools and town councils? Simple, they made it up -- ipsi dixit -- and el toro poopo. The so called theory of the incorporation of the Bill of Rights into Amendment 14 is a pure judicial invention of Century 20. It is a power grab, pure and simple.

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