Before getting too deep into specific church/state controversies, it makes sense to get more or less on the same page. While your Church/State Examiner tries to avoid law speak, some fairly technical terms come up so often and often without a sufficiently succinct substitute. So here is what we mean by . . .
- The Court. The Supreme Court of the United States unless otherwise noted. Law students are taught from day one to capitalize it so that is what you will see here.
- Establishment Clause: The first part of the Religion Clause reading “Congress shall make no law respecting an establishment of religion.” If there is a more oft misquoted line in the Constitution, your Examiner is unaware of it.
- Free Exercise Clause: The second part of the Religion Clause, saying that with respect to religion, Congress may not pass laws “restricting the free exercise thereof.”
- Incorporation. The legal alchemy by which the First Amendment and most of the other guarantees in the Bill of Rights now apply to the states notwithstanding the opening words “Congress shall make no law.” It would be easy enough to leave it at “the Establishment Clause applies to the states, so just deal with it,” except that Justice Thomas insists that it doesn’t, so we may need to delve deeper into the issue.
- Jurisprudence. Original meaning is legal philosophy, but often used as shorthand for “the body of case law about X.” As in “Establishment Clause jurisprudence” meaning all the various cases about the clause including the rules, the reasoning the dissents, what have you. Yes, it’s a weenieish fifty cent legalese word to use, but is much easier than typing “the body of case law about . . .” over and over again.
- Plaintiff. The party who starts a lawsuit.
- Standing. An arcane legal subject that happens to be one of the most important issues in current Establishment Clause jurisprudence. It basically means that to sue, a person must have some personal stake in the controversy. Generally it means that the plaintiff must have suffered some injury. Simply alleging, “This is unconstitutional and it cheeses me off” isn’t enough for standing, but what counts as an injury is an ongoing controversy.
- State action. The Constitution only guarantees rights of citizens against infringement by the government, so if it’s a private party infringing someone’s rights, the Religion Clause does not apply. As straightforward as all this sounds, various state actors have found increasingly ingenious ways to blur the lines between state and private action, making this yet another area of ongoing controversy.
Surely more will arise, but that should be enough to go forward with.
Comments