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Justice Souter can certainly be forgiven for believing that James Madison would be appalled to find out that the Constitution requires the funding of a religious body! Ira Glasser, the executive director of the American Civil Liberties Union sent out an urgent letter at the end of 1995 appealing for funds to fight the growing number of religious liberty groups among the Religious Right.

Naming specifically the Rutherford Institute, the American Center for Law and Justice, and other organizations working in the name of religious liberty, Glasser said: newly empowered extremist groups in nearly every state are fanning the flames of intolerance and bigotry...[they} feel like they have permission to set fire to the Bill of Rights in courtrooms from coast to coast..assault from the extreme right is unprecedented in both its scope and strategy.

At the time this was fairly revolutionary since all European states were constitutionally aligned with some institutional church.

That said, non-establishment of religion isn't exactly the same as absolute “separation of church and state.” The controversy really came to the fore around the 1950s when the Supreme Court began applying a more rigid standard of “separation” regarding issues such as public funding of transportation or books for private religious schools, prayer in public schools, religious displays (like Ten Commandments) in courthouses, prohibition of teaching evolution.

It's not so much that the Establishment Clause itself is controversial but rather the controversy derives from its proper application or understanding .

The second issue concerns the application of the Establishment Clause against the states under the liberty component of the Fourteenth Amendment’s Due Process Clause.Even in modern times, some European states like Great Britain, Sweeden and Norway have constitutionally established churches wherein the monarch is the head of the church.As former subjects of the British Empire, the American Colonists did not want a similar institution in the United States.When the First Amendment was drafted, it applied only to the U. In 1940, the Supreme Court held in that, due to the Fourteenth Amendment, the Free Exercise Clause is enforceable against state and local governments (this act of using the Fourteenth Amendment as the vehicle through which the Court applies the Bill of Rights to the states is also known as the Incorporation Doctrine).The Establishment Clause: The First Amendment provides that “Congress shall make no law respecting an establishment of religion….”The Lemon Test: The three-part test enunciated in Lemon v. And it is particularly successful in advancing the religious agenda of the radical right.Teresa Stack, a staff member with the liberal magazine The Nation, encouraged readers not to give up "while the lunatic Right hacks away at our basic freedoms in the name of their self-serving values." Can there be a reconciliation of the differing interpretations of history which keep a chasm between these two sides?Mc Connell explains: If there is a constitutional requirement for accommodation of religious conduct, it will most likely be found in the Free Exercise Clause.Some say, though, that it is a violation of the Establishment Clause for the government to give any special benefit or recognition of religion.While one might intuitively read this to mean that the clause was meant to preclude endorsement or support of some particular religion, it is important to note that the clause also prohibits the endorsement of religion generally over non-religion. The Everson Court also provides a list of state actions that violate the Establishment Clause. The Court does not present this list as comprehensive, but rather as a minimal list of activities prohibited by the First Amendment. Kurtzman…which guides the general nature of our inquiry in this area.” Santa Fe Independent School District v. If any of these three requirements are not met, the law violates the Establishment Clause. As the Court noted in 1947, “A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government-favored churches.” -Everson v.


  1. The Establishment Clause together with the Free Exercise Clause form the constitutional right of freedom of religion that is protected by the First Amendment to the United States Constitution. The relevant constitutional text is "Congress shall make no law respecting an establishment of religion, or prohibiting the. While the Establishment Clause does prohibit Congress from preferring or.

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