How Does the ACLU Fit In?

The American Civil Liberties Union is an organization that says they protect the Bill of Rights. Much of their work regards the so-called separation of church and state. I just went through some of their literature, where they bragged about their successes in court. Much of what they did seemed to me to fit their stated goal. They did some good upholding the Bill of Right. But most of their actions (as summarized in their document) regarding religion seemed to have it reversed from the Founders' intentions.

The First Amendment to the Constitution, religion clauses: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”

The First Amendment's prohibitions apply only to Congress. However, the 14th Amendment is often used to apply the same limitations to the states. The 14th says: "no state shall deprive any person of life, liberty, or property without due process of law." It seems a stretch to interpret this in a way that applies the Establishment Clause to the states, but I won't argue that point in this post. However, these are the only Constitutional limits on government action regarding religion, and mentioning them here is background for this post.

According to the ACLU's own literature, here are some of their successes regarding the First Amendment religion clauses.

1947: Everson Vs. Board of Education. This is the decision where Justice Black first brought up the phrase "separation of church and state" without actually relying on the words in the First Amendment.

Justice Black found all kinds of things in the First Amendment that are simply not stated. Justice Black in Everson said: "The establishment of religion clause of the First Amendment means at least this: neither a state nor the federal government can set up a church; neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. No tax in any amount, large or small, can be levied to support any religious activities or institutions whatever they may be called or whatever form they may adopt to teach or practice religion. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'" Compare that with the actual words of the First Amendment. And even if you agree with Black, note that he applies this "logic" to the Federal Government and to State Governments only - not to cities or counties.

1962: Engel v. Vitale. Banned the New York Regent's nondenominational prayer.

If you believe the 14th Amendment applied the First Amendment's religion clauses to the states, then this could be supported (although it does not fit the Founders' own actions very well).

1963: Abington School District v. Schempp. "Building on Engel, the Court struck down Pennsylvania's in-school Bible-reading laws..."

Same comment as above. Note that the ACLU says they built on Engel.

1968: Epperson v. Arkansas. The state had banned teaching the man evolved from lower animals. The Court struck this down as a violation of the Establishment Clause.

Same comment as above.

1985: Wallace v. Jaffree. Alabama had a law specifying a moment of silence for prayer of silent meditation." The Court banned it as a violation of the Establishment Clause.

Now the Court is saying that a moment of silence essentially a law establishing a religion.

1992: Lee v. Weisman. The Court said that starting a high school graduation ceremony with a prayer was unconstitutional.

Where in the Court decisions above did the prohibitions start applying to a school?

2000: Santa Fe Independent School District v. Doe. The local school district had a policy that permitted the students to vote each year to decide whether football games would start with prayers. The Court said this violated the Establishment Clause.

Now the Court has banned actions that are decided by the students. Note that the First Amendment has TWO religion clauses. One is the Establishment clause (Congress shall make no law...) and the other is the Free Exercise clause (...nor prohibit the free exercise...). The 2nd clause seems to be largely ignored, or at least overwhelmed, by the 1st clause.

2004: McCreary County v. ACLU of Kentucky. The Court banned two courthouses from displaying the Ten Commandments.

Despite statements by our Founders that much of our law and morality are based on the Ten Commandments, the state's Supreme Court has decided that a house of law should not display the Commandments. This also ignores the fact that they hang in the Supreme Court building (for now, anyway).

Remember that the Founders feared a Federal Government that might become too strong. The Constitution outlines limited powers for the Government. The Bill of Rights further defines those limitations. Yet it many cases, the decisions above were the Federal Court limiting the power and freedom of expression of states, counties, school districts, and even schools.