Wednesday, January 25, 2012


My best guess is that if you asked most Americans, or for that matter most Kansans, what the Establishment Clause is that the most common answers would be in the range of "don't know" to "something in the Constitution."  The Establishment Clause is one of two clauses in the First Amendment to the Constitution dealing with religion.  The other is the Free Exercise Clause.

The Establishment Clause says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  The Establishment Clause applies to the States of the Union through the Fourteenth Amendment.   You can effectively read the clause as "Kansas shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" because that's the way a federal judge will read it.

Most folks will begin to remember what Thomas Jefferson and James Madison said in their writings on this topic.  They spoke about a wall of separation between church and state.  Jefferson wrote:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State.

In 1947 the Supreme Court began to weigh in on the Establishment Clause.  Justice Black used the wall of separation analogy.  The case is called Everson v. Board of Education and the issue was whether reimbursing parents for the cost of transporting school children to and from school violated the Establishment Clause where the students were taken back and forth to parochial schools.  Black said paying the parochial schools directly would be a violation, but that reimbursing the parents furthered a legitimate state secular interest in safely transporting children.

Everson tells us, because all nine members of the Supreme Court told us, that the Establishment Clause reaches far beyond a state adopting a particular religion as that state's religion.  This wall separating church and state is not made of granite.  Think of it as an old plaster wall in a house where the foundation has settled.  There are cracks, sometimes there is light or air moving through the wall. 

Consider prayer and religious education for public school children.  A knee jerk bright line approach would say never, not at all, you can't do that.  Two cases show how the answer is sometimes yes and sometimes no.  McCollum v. Board of Education, is a 1948 case finding eight justices more or less agreeing (Justice Black delivered the opinion of the Court, Justice Frankfurter delivered a concurring opinion joined by Justices Jackson, Rutledge, and Burton.  Justice Jackson delivered a separate concurring opinion, and Justice Reed dissented).  In McCollum religious instruction was provided in public schools and the Court said this was a clear violation of the Establishment Clause.

The other side of the coin, off premises religious education, gets a different result in Zorach v. Clauson where public school students were given release time to attend religious instruction in the churches and synagogues of their choice.  In a 6 to 3 decision the Court said that public facilities were not being used for the purpose of religious instruction and that "no student was forced to go to the religious classroom." Justice Douglas, who wrote the majority opinion, argued that there was "no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."  Douglas also said, "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person." (Emphasis added).

Reading those early cases we see that the discussion of the Establishment Clause tended to focus on children and education.  Today we are on the verge of new analysis of the Establishment Clause, that is because the religiously motivated Anti-Abortion forces in Kansas are proposing to excise the language of science in the state laws regarding abortion and replace that language with the language of religion.  This insidious encroachment effectively removes the objective based scientific standards of gamete, zygote, embryo, and fetus with the all inclusive, straight from the Theology in Opposition to Roe v. Wade, term "unborn child."

Justice Stevens' opinion in Webster v. Reproductive Health Center, in which he concurred in part and dissented in part, gives the Kansas Legislature words to heed.  He said, "Indeed, I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution. This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, see McGowan v. Maryland, 366 U.S. 420, 442 (1961); Harris v. McRae, 448 U.S. 297, 319-320 (1980), or on the fact that the legislators who voted to enact it may have been motivated by religious considerations, see Washington v. Davis, 426 U.S. 229, 253 (1976) (STEVENS, J., concurring). Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some, but by no means all, Christian faiths, serves no identifiable secular purpose. That fact alone compels a conclusion that the statute violates the Establishment Clause. Wallace v. Jaffree, 472 U.S. 38, 56 (1985)." (Emphasis added).

When it comes to abortion and abortion related statutes, the Kansas Legislature is essentially doing a cut and paste job.  They are intent on cutting scientific language and pasting religious dogma, their insidious encroachment of religious text serves no secular purpose thus violating the Establishment Clause.

The offending bills include House Substitute for Senate Bill Number 34, Substitute for Senate Bill Number 36, House Bill Number 2035, House Bill Number 2218, Substitute for House Bill 2242, House Bill 2292, House Bill 2337, and House Bill 2377.  And do not forget House Concurrent Resolution Number 5029.  Although this ill-conceived constitutional amendment does not use the language of "unborn child" it clearly establishes gametes, zygotes, embryos, and fetuses as "persons" thus making another insidious encroachment, science be damned, of religion into law.

It is one thing to be either pro-life or pro-choice.  It is altogether another thing to be an anti-abortion extremist intent on supplanting the law of the land with a theology developed to counter the Supreme Court's opinion in Roe v. Wade.  Here the anti-abortion forces and their minions in the Kansas Legislature are posed to wreck havoc on women and force the State of Kansas into needless and expensive federal litigation. 

Adequate restraints on abortion already exist without taking the religious views of some Christians and forcing them upon the balance of society.  A July 2011 Gallup Poll found 26% of Americans think abortion should be legal under any circumstance, 51% think abortion should be legal under certain circumstances, and a minority view with 20% thinking abortion should be illegal in all circumstances. 
It is time for saner minds and adult thinking to prevail in the Kansas Legislature, it is time to reject these extreme attempts to violate the Establishment Clause with respect to abortion related laws in Kansas.  Will the grown ups please take charge!

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