Monday, November 9, 2009

Did You Know?

Did you know that the first public school in the United States was established in 1635? Five of the 56 signers of the Declaration of Independence attended this school known as the Boston Latin School.

What's curious about this information is that it's inconsistent with some of the Establishment Clause alleged facts and case law. In 1971, the Court formulated a test, known as the Lemon test, to determine when the Establishment Clause has been violated. The Lemon Test's inquiries are whether the regulation has a secular purpose, whether the primary effect of the regulation is to advance religion, and whether there is excessive entanglement with religion due to the regulation. However, this test was not applied in an Establishment Clause case in 1983 when the Court was considering whether it was constitutional for legislatures to have prayer before their official proceedings. Marsh v. Chambers. The Supreme Court did not apply the Lemon Test in Chambers because of "unique history" of the United States. Specifically, at the time of the formation of the US when the First Amendment was codified, legislatures were praying publicly before their official sessions. Hence, how could the courts now rule that it is unconstitutional to pray before legislative meetings when the ones who drafted the law were doing that very practice? 

Courts argue that the reasoning of Marsh v. Chambers cannot be applied to issues regarding public schools as public schools were not in existence at the time of the codification of the First Amendment. Really? The founder of Boston Latin School was a puritan minister. Are we really to believe he wasn't leading the students in prayer and other religious activities? This unequivocal application of Lemon seems inconsistent to me ... but law can be an inconsistent, muddy mess.

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