Religion under the State Constitutions, 1776-1800

The Supreme Court, the establishment clause, and the First Amendment.

“…40 Ibid. recognized that respect for property rights constituted the basis of ordered liberty and economic development. 41 The free-market economy facilitated the growth of both industrialization and urbanization, which also aided the growth of big businesses and corporations. During this time Ely contended that the understanding of property rights had never been fixed.…”

“…44 This new focus led legislators to "redress the unbalanced social and economic situation by, in essence, mandating a redistribution of property in favor of those viewed as disadvantaged." 45 Legislating social change aroused the ire and hostility 41 Ibid. 42 Ibid., 8.…”

“…41 The petitioners reasoned that the "intent of the drafters of the Constitution and the historical practice of confirming that intent," affirmed their belief that public manifestations of religion are not inherently unconstitutional. To support this argument they emphasized the words of Chief Justice Warren Burger from Lynch, who "set forth a litany of governmental displays that are accepted without thought of a fullblown constitutional analysis."…”

“…The County of Allegheny argued the Supreme Court and other federal courts are opened with an announcement that concludes "God save the United States and this Honorable Court." 45 If these and other public religious manifestations occur "within" and are "incorporated" in the core 41 Ibid., 178. 42 Ibid., 178, 179.…”

“…We have said essentially the following: Government may not act with the purpose of advancing religion, except when forced to do so by the Free Exercise Clause (which is now and then); or when eliminating existing governmental hostility to religion (which exists sometimes); or even when merely accommodating governmentally uninhibited religious practices, except that at some point (it is unclear where) intentional accommodation results in the fostering of religion, which is of course unconstitutional. 41 Justice Rehnquist further added that the purpose prong of the Lemon test is not "a proper interpretation of the Constitution," and has "no basis in the history" of the First Amendment. 42 Rehnquist concluded by saying that the test "has proven mercurial in 39 Ibid., 115.…”