Tuesday, August 26, 2003

In the Slate column I mentioned yesterday, Dahlia Litwick did cite the key Supreme Court decisions that undermine Judge Roy Moore's defense of his Ten Commandments doodad -- Everson v. Board of Education and Lemon v. Kurtzman. So maybe I shouldn't have criticized her for failing to address the argument advanced by Moore defenders such as Alan Keyes that there's no constitutional basis for rulings against Moore and the monument.

But Lithwick didn't mention the bridge used in Everson to get from the federal ban on established religion to a ban at the state level -- the Fourteenth Amendment, explicitly cited by Justice Hugo Black in Everson. Maybe Lithwick thought this was too obvious to mention. Maybe you think it's too obvious to mention. It isn't. America isn't exactly a nation of A+ civics students. Most of us don't know what's in our Constitution -- most of us haven't even read the damn thing. Do you think most of the demonstrators praying in Montgomery know what the Fourteenth Amendment says?

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And one of the laws covered by that "equal protection" clause is the First Amendment's disestablishment of religion.

So when Keyes asks,

Would somebody point out to me the law that this judge is basing his decision on? Because if I'm breaking the law, or if Judge Moore's breaking the law, I'd like to know which law it is. I'd like to know who passed it, I'd like to know where it's written! [cheering, applause]

...Where?! Where, I ask them, is the law that is being broken? Where is the Constitutional provision that is being defied?

there's the answer: the First Amendment, filtered through the Fourteenth.

Here's Justice Black, in Everson:

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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. 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."

(UPDATE: Atrios beat me to the punch on this, as he so often does, and he added a nice quote from Alabama's own constitution regarding church-state separation.)

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