In the Fifth Circuit Court of Appeals, the ACLU Foundation of Texas, the ACLU Foundation in Washington DC, and the Americans United for Separation of Church and State filed a friend of the court brief in support of the plaintiff.
The case: David Wallace Croft v. Governor of the State of Texas, Rick Perry, and
Carrollton-Farmer's Branch Independent School District, on appeal from the District Court for the Northern District of Texas, No. 3:06-
cv-00434.
There is a precedent established by the US Supreme Court; the primary purpose of a Legislative Act determines whether it violates the Establishment Clause.
"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion."
By amending the Act to include the word "prayer", the purpose of the legislation changes, and it becomes unconstitutional.
The battle to preserve the separation of church and state continues with the David Wallace Croft case, and the filing of the friend of the court brief.
The
Amicus Curiae brief, to paraphrase, argues that in question is not the constitutionality of a Legislative Act requiring a moment of silence, nor an Act that required a moment of silence with prayer listed as a possible activity. The issue is amending an existing Act to include a gratuitous reference to prayer. The purpose of amending the Act is solely to encourage prayer in public schools. As such, it is unconstitutional.
The point the brief is making is that the legislatures of Texas are trying to encourage prayer in public schools. This is unconstitutional. The Establishment Clause is interpreted to mean that the helping of all religions, or any single religion is unconstitutional.
Constitutional Law - as understood by The Federalist Society:
"If the Establishment Clause means anything, it means at least this: Neither a state nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion to another." - Justice Black. This completed the separation of Church and State. The Establishment Clause is now understood to apply to states, not just the Federal Government. The Establishment Clause prohibits states from helping or encouraging religion(s).
Help all religions? Or, some religions over others? This is not permissible according to the standard of the separation of Church and State in its strictest form.
"The Establishment Clause was primarily an attempt to ensure that Congress not only would be powerless to establish a national church but would also be unable to interfere with existing state establishments." -Justice Potter Stewart in a dissenting opinion.
Abington School District v. Shempp:374 U.S. 203 (1963)
In this United States Supreme Court case, decided on June 17, 1963, the decision was 8-1 in favor of Edward
Schempp, plaintiff. A Pennsylvania statute requiring Bible reading in public schools was declared unconstitutional. It infringed upon
Schempp's rights under the First and Fourteenth Amendments. This marks the beginning of the Separation of Church and State in its strictest form.
"Most U.S. citizens believed that the United States was a nation founded on Christian principles. Yet, in spite of their widely held beliefs, as early as 1890, many states were rolling back mandates of state sponsored devotional exercises in the classroom (Boston, 1993, 9. 105)." -
Wikipedia.
The Pennsylvania statute was struck down by the district court, which ruled in
Schempp's favor. The school district appealed. The Pennsylvania legislature then amended the statue to allow children to be excused from the exercises upon the written request of their parents.
Schempp argued that the nature of the law had not changed. There was vacating and remanding by the Supreme Court as a result of the Legislature amending the statute with the allowance for parent's written excuses for their children.
"The district court, however, again found for
Schempp, even with the allowance for written excuses. The school district appealed to the Supreme Court again. The case was consolidated with a similar Maryland case.
Justice Potter Stewart was the only dissenting Justice in this US Supreme Court case. The Court ruled in favor of the plaintiff,
Shempp. Justice Stewart argued that the religious clauses do not establish the standard of the separation of church and state.
Establishment and Free Exercise Clauses of the First Amendment:
In the First Amendment to the US Constitution it is stated that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
One may question the framer's original understanding of the Establishment and Free Exercise Clauses. At the time of this nations founding, many other countries had national religions. They were financially supported by the State. Thomas Jefferson argued for a "wall of separation between church and state."
Another case with an amended moment of silence:
Wallace v.
Jaffree, 472 U.S. 38 (1985).
Web sites of interest for further reading:http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/estabinto.htmAmicus Curiae: friend of the court.The ACLU and ACLUF of Texas are 501(c)(3) nonprofit corporations.
