http://www.law.cornell.edu/constitution/constitution.overview.htmlAmendment I (adopted 1791)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Notice the Amendment says CONGRESS shall not make no law.... It does NOT forbid the States or Local Government to do so. Thus how did the First get to apply to the States and Local Governments? That is through the 15th Amendment:
Amendment XIV (adopted 1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Now for over 30 years AFTER the Adoption of the 14th Amendment, the Supreme Court of the US ruled that the Bill of Rights did NOT apply to the states. Starting in the late 1800s the Court finally decided that the Due Process clause of the 14th was the same as the Due Process Clause in the Fifth EXCEPT it also applied to the States. At first this was just viewed that the States had to Give Due Process to its citizens in Court proceedings, but then it was expanded (to help the expanding Railroads of the time) to prohibit the states from passing laws that interfered with the Right to Contract for such laws denied people (Meaning Corporations) the right ot be heard in Court and thus a denial of Due Process.
Finally in 1905 this doctrine was given full life under the Concept of "Substantial Due Process". What is meant by "Substantial Due Process" is if a law would interfere with someone's "Right" that law was unconstitutional under the 14th Amendment. The 1905 case that finally established this was the Locker vs New York Case (
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/lochner.html). The
Locher case is often referred to the case where the Supreme Court protected people "Freedom to Starve". In
Locher the Court struck down as a violation of the Due Process clause of the 14th a State's regulations regarding wages and hours (The Case was Reversed by the Court starting in the 1930s so no longer valid law).
From
Locher the Court expanded on the concept of Substantial Due Process till the court started to rule that it was a Violation of the 14th amendment's right to Due Process for a State to pass a law in violation of the First Amendment (This was NOT done till the 1920s). Thus one of the problem with the First Amendment is does it really apply to the States? The only way is through the 14th (For the clear language of the First precludes it by its own wording to apply to the states). The present law came from
Locher and it Substantial Due Process language. If the court would say that the 14th ONLY protects Due Process rights, then the First can not be made to apply to the States and as such the states can do with the items in the First amendment as they see fit under their own State Constitutions.
Now some arguments can be made that the 14th, two other phases can be made to have the First Amendment to apply to the States, First is the clause guaranteeing All Citizens the "privileges and immunities" of Citizenships of the United states AND the right to "Equal Protection of the laws" (In the 1880s Civil Rights Cases BOTh of these "Rights" were restricted to Federal Rights to participate in Federal elections, and other rights guaranteed to ALL citizens of the United States, as set forth in the Constitution but NOT the rights listed in the Bill of Rights, for those rights were only rights FROM the Federal Government NOT rights from the States).
I mention this for the First Amendment cases are built on the quicksand of
Locher and with its reversal a good argument can be made that most other substantial Due process rights should also be overtured (including First Amendment Rights).
This is the problem for the Courts, ideally the dispute should be handled by the State Legislatures (Which is what the Supreme Court has done when it comes to economic issues and Substantial Due Process) but you also have this long line of Cases extending the First Amendment to the states. What to do? The courts have made a mess of it for it really should be a legislature decision. For the State Legislature represent the people and thus have a better feel for what the people what when it comes to Rights under the First Amendment. At the same time the Court know that State Legislatures will cater to small groups who want they way even if that violation the spirit of the First Amendment.
Given this dilemma the Courts basically have decided to decide these issues on a case by Case basis. Deferring to local and State Government when they can and striking down decision of Local and State Governments when such Government go to far (i.e. actually appear to start to offend a sizable number of people). Older signs of Religion (especially dating to the pre-1920 period) tend to be permitted for the Courts of that time period would have permitted them up if such symbols of religion had been challenged in Federal Courts at that time. Later symbols of Religion the Courts tend to be more hostile to, for had they been challenged when first put up the Court would have ruled them as Unconstitutional.
The problem is today, most cases involved NOT what a Government is doing TODAy (or even in the last 30 years) but what that Government did 50-100 years ago, WHEN SUCH SYMBOLS OF RELIGION ON GOVERNMENT PROPERTY WERE NOT ONLY COMMON BUT OFTEN PUT UP BY COURT OFFICIALS THEMSELVES.
Thus, In my opinion, this is the modern test for the First Amendment:
1. Does it cause harm to a religious/political/Cultural/Racial Minority? If yes, no matter the age it is unconstitutional (and these rarely are the types of cases being contested TODAY).
2. Recent installation of Religious symbols, Unconstitutional unless clearly Secular in display (Santa Claus yes, elves, yes, Reindeer yes, Jesus and Mary, NO).
3. As to older religious items on Government Property, would the item have been declared unconstitutional at the time it was set upon Governmental property? If no, it should be left, if yes, it must be removed. Thus older religious symbols can be permitted, newer ones can not be.
4. Substantial rehabilitation? If it is just of the Religious symbols Unconstitutional, if it is part of a overall rehabilitation of a Government Property permitted if the religious symbols is of the type the courts would have permitted when the Religious symbol originally went up (Unconstitutional if it is of a type or of an age where such symbols would NOT have been permitted to be put up on Governmental Law).
5. An overall deference to Local and State Government when it comes to WHAT the state or local government is doing i.e. in a rehab of a Court house that includes the Ten Commandments, if the Government claims cleaning a copy of the Ten Commandments is part of a overall rehab, the burden to show it is NOT is on the person alleging it is not. The Court will accept the Government position that what the Government is doing in Constitutional unless by clear and convincing evidence the Government can be shown doing the Religious symbols only (and even here the Government can claim it decided to do the religious symbols first and ran out of money so only the religious symbols were done and the Court will accept that argument).
My point here is the Courts have to make a hard (and often an unpopular) decision when it comes to issues of older religious symbols on Governmental Property. The Court can rely on the fact that People have the concept that the First applies to the States and thus reduce some of the hostility to any decision to remove Religious Symbols off Government property, but in actual law, the First Amendment on its face does NOT APPLY TO THE STATES. It is only through the 14th amendment's Due Process clause that the First Amendment applies to the States, and thus how is "Freedom of the Press, Freedom of religion, Freedom to Petition the Government" Due Process? More actually, how is it a Violation of Someone's right to Due Process when it comes to these "rights"? Due Process generally means the right to a fair trial, the right to appeal, the right to a lawyer, the right to face one's accuser etc. Rights you need in Court. The First Amendment does NOT provide such procedural rights.
Given the above, I am sometime surprised that the Court Continues to take First Amendment cases. I believe the Court takes them for the First is a very popular Amendment and the Court does NOT want to become unpopular if it should decline to protect people's rights under the First (and those rights are popularly believe to be i.e. applying to the Federal, State and Local Government, not just the Federal Government). I fear someday the Court WILL take that road, i.e. say the First is what it says it is and NOT a right expanded to the States and local Government by the 14th Amendment.
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