Thursday, June 23, 2011

Do we have separation of church and state?

Today I’m addressing another constitutional issue: the Separation of Church and State.

Sounds like an easy concept, right? Not to mention one of the foundations of our country and something that everyone should follow and believe in, right?

Wrong on both accounts.

Separation of church and state starts with the Establishment Clause of the First Amendment, which states that the government cannot pass laws that establish a religion. One of the main ideas behind this is that a person should not be taxed to support a religion that they don’t believe in. However, the current view of the Establishment Clause is not a wall that firmly separates government from religion. Instead it is the view of the Supreme Court that such a separation is hostile to religion and limits the ability of the majority to govern as it wishes.

As a result – religious monuments are allowed on government property (see Van Orden v. Perry); religious schools can receive government aid (see Mitchell v. Helms); and our pledge of allegiance contains the words “under God”, an issue that the Supreme Court just declined to review.

However, it is law that you can’t have school prayers, a fact that has been confirmed by the Supreme Court in several cases. So that’s something at least.

My thoughts: I feel like this should be simple – church and state should be separate. However, I can see the Supreme Court’s point that denying any aid to religious organizations (especially ones that run programs that help the community) could be seen as hostile. So there’s definitely an issue there, one that isn’t really solvable. But I definitely disagree with the concept that strict separation does not allow the majority to rule as it wishes. If we allowed that we would (1) be a theocracy not a democratic republic and (2) no better than any other country where the majority has imposed its beliefs on the rest of the population. The second point is kind of the reason this country even started, right? The Puritans were persecuted in England because they were not of the majority religion. And considering that about 10 percent of the current American population is descended from those first 20 families who came here to find the freedom to practice their own religion and not a state established religion, one would think that more people would advocate separation of church and state. And yes, I do realize that the Puritans then established their own state religion, but my point is this – the majority should not be allowed to rule under their own religious dictates because to do so violates the rights of the minority.

In closing, I’m a Christian, but the fact that the pledge of allegiance contains the words “under God” is wrong to me. This is not a theocracy, we are not a nation under God. But nothing is going to change unless the Supreme Court reviews the problem. And even then, the current court would probably keep the phrase anyway.

Information used in this blog was taken from the book "The Conservative Assault on the Constitution" by Erwin Chemerinsky and from Americans United for Separation of Church and State's blog.

Tuesday, June 21, 2011


My first post is going to combine my love of constitutional law with my love of immigration law.

First of all, a little constitutional law primer: Federal law preempts (displaces) state law. This starts with the Supremacy Clause of the Constitution (Article VI, clause 2), which states that the Constitution is the supreme law of the land. In 2008, the Supreme Court stated that if a federal law conflicts with a state law, the federal law will trump or preempt the state law. (Altria Group v Good, 555 US 70). There are two kinds of preemption: express when a federal law confirms the government’s intention to preempt state law and implied preemption. Implied preemption is a bit difficult to understand but basically it comes into play if (1) you cannot comply with federal and state law (2) state law impedes the achievement of Congress’ objectives or (3) the federal law is so complete that it occupies the field, leaving no room for state regulation.

The applicable federal law is the Immigration Reform and Control Act (IRCA) which makes it illegal for a person or other entity to employ an illegal alien while knowing that his presence in the country is illegal. 8 USC 1324(a)(1)(A). IRCA expressly preempts state laws that impose civil or criminal sanctions for employing illegal aliens, but allows sanctions through licensing or similar laws. 8 USC 1324a(h)(2). The Act also requires that employers to find out if an employee is eligible for employment and Congress created E-Verify (internet based system wherein an employer can check the work authorization of employees) to help in this matter.

The law at issue here is an Arizona law – the Legal Arizona Workers Act. This law allows for the suspension or revocation of licenses of Arizona employers that knowingly employ illegal aliens and requires that all Arizona employers use E-Verify.

The Arizona law was challenged on the basis that the license suspension and revocation provisions were expressly and impliedly preempted by federal immigration law and also that the mandatory use of E-Verify was impliedly preempted.

The Supreme Court affirmed the Ninth Circuit’s decision that the Arizona law was not preempted. It falls within the confines of the powers left to the states under IRCA because it imposes licensing restrictions, not criminal or civil sanctions so there is no express preemption. Nor is there implied preemption. The Arizona law is merely implementing the sanctions that it is allowed to implement under IRCA, in other words, licensing laws. As for the E-Verify provision, it is also not impliedly preempted because it does not conflict with the federal law.

My thoughts: The Court got it right. Arizona’s law does not conflict with IRCA. It does not impose sanctions beyond what IRCA allows states to impose. It falls within the area left to the states by IRCA – licensing. Furthermore, I personally think that states should be allowed to pass laws that implement federal law at the state level for better enforcement. We have a real problem with illegal immigrants in this country and it might be too much for the federal government to handle. I think that the states should be allowed to pass laws that help combat the problem, as long as they fall within the boundaries left to them by federal law. For example, a state cannot pass its own immigration laws (that would be preempted!) but it could pass a law that helps enforce the federal law. Just like Arizona did.

Want to read the case for yourself? You can find it on the Supreme Court's website: and more information on federal preemption can be found on Wikipedia (I know, I know, but it was the quickest resource! I don't have my constitutional law notes with me from law school!) -


Good afternoon! And welcome to my new blog!

I decided it was time to start a blog about what is nearest and dearest to me - the law. There are numerous things happening in the United States and abroad that I have an opinion about, and I figured it was high time I talked about them.

First off, a little about me. I'm an attorney barred in the State of Ohio. I have several hobbies and very strong opinions on a few things, usually legal based. In law school, I focused on constitutional law (specifically freedom of religion), immigration law and international law. All three of these issues will likely feature strongly in this blog.

What to expect from me: A discussion of current events, at home and around the world. A discussion of current laws and court cases. There may even be a few book reviews / discussions. Once it gets closer, I'll probably talk about the 2012 presidential election.

What I'd like from you: Talk to me. Disagree with me even but be nice about it! There's no need for attacking. We can calmly discuss things, don't worry. However, please note that if I do feel attacked, I will delete comments. So above all, be polite! I'm sure some of my opinions will grate on people, but that's just the way the world works. I'm not expected everyone to agree with me, I'm just expecting a little politeness.

For now, I'm off to examine recent Supreme Court decisions!