Posts Tagged ‘Establishment Clause’

A fourth-grade class in Chesterfield County, Virginia was recently asked the following multiple-choice question on a history test:

The United States Supreme Court ruled in 1954 (Brown v. Board of Education) that “separate but equal” ___________ were unconstitutional.

A. water fountains
B. restaurants
C. public schools
D. churches

The right answer to this question is “C.”

A more challenging way to ask this same question would be to make it a “multiple answer, multiple choice” question and require the test-taker to concisely explain his or her answer. What’s the right answer?


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Marc DeGirolami has a post bearing this title over at CLR Forum. The post reports on yesterday’s Fourth Circuit decision in Moss v. Spartansburg County School District Seven. Judge Niemeyer wrote the opinion for the court, in which Judge Gregory and Judge Wynn joined.

Apart from its discussion of substantive Establishment Clause principles, the opinion may be of interest for its assessment of Establishment Clause standing (an area of the law that could probably use some rethinking).

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In Charlottesville, Virginia, Thomas Jefferson once sought to re-write the Gospels by stripping out all passages that did not meet his conception of who Jesus was. Contemplating this project, Jefferson wrote to a friend:

I should proceed to a view of the life, character, and doctrines of Jesus, who sensible of the incorrectness of his forbears’ idea of the Deity, and of morality, endeavored to bring them to the principles of a pure deism, and juster notions of God, to reform their moral doctrines to the standard of reason, justice, and philanthropy, and to inculcate the belief of a future state. This view would purposely omit the question of his divinity, and even his inspiration.

Shorn of embarrassing invocations of miracles and other phenomena that mystify an enlightened sensibility, the Jefferson Bible is also a pale shadow of the Gospels.

In Forsyth County, North Carolina, the County Board of Commissioners had a policy of inviting the religious leaders of congregations in the county to deliver a prayer before meetings. The County’s policy promised invited religious leaders that they would be “free to offer the invocation according to the dictates of your own conscience.” The invitation requested “only that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, nor to disparage any faith or belief different than that of the invocational speaker.”

The United States Court of Appeals for the Fourth Circuit has held that this policy, as implemented by the Board, is unconstitutional.


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When it comes to interpreting the Constitution on the United States Court of Appeals for the Fourth Circuit, Judge Wilkinson and Judge Niemeyer do not often engage in such sharply divergent analyses as are apparent in today’s opinions in Joyner v. Forsyth County. At issue is the constitutionality under the Establishment Clause of the prayer policy of the Forsyth (NC) County Board of Commissioners, as implemented during 2007 and 2008. In an opinion authored by Judge Wilkinson and joined by Judge Keenan, the Fourth Circuit finds that Forsyth County has violated the Establishment Clause. Judge Niemeyer dissents.

Snippets from the majority opinion after the jump. Portions of the dissent and issue analysis in later posts.


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