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Understanding the Separation of Church and State

Matt Yglesias writes:

Joe Klein names a few characteristics of right-wing extremists, including:
*believes that homosexuals are condemned to hell. *believes that there are inferior religions.
. . . I don't really think it's fair to condemn people for holding them. To me the belief that gay sex acts are immoral is false and hard-to-justify. It's not, however, politically objectionable unless the believer goes on to believe that government policy should be aimed at criminalizing gay sex acts or discriminating against gays or lesbians. After all, there are tons of religious prohibitions (Muslims don't drink alcohol, Hindus don't eat beef, Jews don't eat pigs, Pentacostalists don't dance) that I don't agree with, but that I also don't have a problem with unless the believers want to turn them into legal prohibitions.

Matt's objections seem limited to political ones. I think the bigger objection is Constitutional. The First Amendment and the Separation of Church and State, that much maligned phrase.

Previously I wrote:

One of the many examples of Right Wing distortion and disingenuousness comes when the concept of church-state separation is discussed. You have all heard this one -- "The separation of Church and State does not appear in the Constitution." The argument is that Thomas Jefferson invented the concept in an 1802 letter to a church group. This is, in a word, false. The First Amendment states expressly that the State can not be involved in religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

Did anyone miss that? Congress (which means all government through the incorporation doctrine of the Fourteenth Amendment) shall make NO LAW respecting establishment of religion. One more time, NO LAW. None. Zero. Zip. Nada. Any ambiguity there? Is the plain meaning of the text in doubt?

But where does it say church/state separation? Repeat and rinse. NO LAW. The fact that the State can make no law on establishment of religion separates the State from religion absolutely and entirely. That is what the text plainly and unmistakably says. Now we all know the Supreme Court, in acts of activism that please the Right, decided that NO LAW did not really mean NO LAW. And we live with the Lemon test, more or less, today. But make no mistake, the First Amendment expressly separates that State from religion by prohibiting all laws regarding establishment of religion.

As Yglesias frames his examples, the hypothetical laws are all religiously motivated. That is simply a no no. but imagine instead that say, the prohiitions against alcohol consumption or eating pork were instead health based? Obviously then, there would be no First Amendment problem. The more interesting question is would Yglesias' objections still stand? Are his objections REALLY politically based beyond what is in the Constitution? Isn't his objection to the motivation of the proposed laws? I think so.

The questions of believing homosexuality should be criminalized or discriminating based on religion are also prohibited by the Consititution. In Lawrence v. Texas, the SCOTUS ruled, roughly, that the liberty provision of the Due Process Clause prohibited government interference with private sexual conduct.

And of course the Equal Protection Clause prohibits discrimination based on religion.

The First Amendment. The Separation of Church and State. These are the political tenets that the Founders cherished. They are fundamental.

It is not extremist imo to believe in religion. It is extremist to believe religion can intrude on the State or the State can intrude on Religion.

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    This site (none / 0) (#1)
    by kidneystones on Tue Mar 06, 2007 at 01:09:51 AM EST
    may get a boost in traffic.

    I'd like to see a cleaner interface, there's clearly no problem with content.

    Read at your own risk.

    Repeal? (none / 0) (#2)
    by Abdul Abulbul Amir on Tue Mar 06, 2007 at 07:53:42 AM EST
    So we should repeal or strike down laws against murder and theft as they are proscribed in the ten commandments?

    All laws that constrain behavior are based on our beliefs and values.  This is true if those beliefs spring from deity based religions as well as secular religions like Goreacleism.  I'm fine with any group trying to drum up the votes to ban pork (fat chance) for any reason.  That includeds meat is murder, it is unkind to piggies, some diety or other frowns on the practice, obesity, or we should all be vegans.  This is what democracy is all about.

    The thrust of your post seems to be that laws that that you agree with and have a religous basis of support like theft and murder are just fine, but laws you don't agree with are improper because there is some religous value associated with that law.  Seems hypocritical.

    good post (none / 0) (#3)
    by Deconstructionist on Tue Mar 06, 2007 at 08:53:05 AM EST
      Some don't grasp that just because a religion supports/opposes something that the religious basis for the position is not the only one that can exist.

       I can be opposed to  or support all sorts of things that also just happen to be supported or opposed by other people in whole or in part due to their religious beliefs, even if i have no religious beliefs and my position has nothing to do with religion.

     

    Parent

    Take it in context. (none / 0) (#4)
    by kindness on Tue Mar 06, 2007 at 09:53:21 AM EST
    We here in the US have one of the most diverse mixing pots of any nation on the planet.  We are lucky to include protections for minority points of view (ie - religions also) in our Bill of Rights.

    Consensus between all of the participants will lead to agreement on some issues, murder & the like.  But to suggest that a law be put on the books to tell non-practitioners that they must obey some one elses morals, which that person may not share, is wrong.

    All you have to do is look at the whole vice crime regiment to see we shouldn't be interfering with individuals practicing their own moral beliefs, but also not forcing those beliefs on those who don't agree.  Should marijuana be illegal?  Should gambling or prostitution be illegal?  I think not.  But I'm in the distinct minority there.

    As far as Matt Y's point of view.  he expresses himself very well, but he is more careful and prudent than most of us when he says his piece.  For that reason, sometimes I think he holds back and doesn't always completely express my point of view.

    Parent

    Consensus --- (none / 0) (#5)
    by Deconstructionist on Tue Mar 06, 2007 at 10:16:56 AM EST
     is relevant to the passage of legislation, obviously-- but it is not the issue with regard to constitution  voiding enacted legislation.

      A law opposed only by a tiny number of people and that the "consensus" supports should be scrutinized the same as one on which views are closely divided.  

      When the argument is a law that a law violates the 1st Amendment because it runs afoul of the Establishment Clause (which is the argument being made here about "sex laws" although there are other arguments under the 4th Amendment "privacy" jurisprudence and also equal protection) it is clearly not enough to show that the law is in whole or in part motivated by the religious beliefs of some of the supporters.

       First, morality can exist apart from religion. Second, bases for the law apart from morality can exist.

       Murder and larceny crimes provide easy examples. Prohibitions against both are fundamental to the dominant religion (and others). If the existence of religious commandments against murdering or stealing and the identification of some people who support such laws solely on that basis was enough for an establishment Clause violatin  then those laws would be unconstitutional. However, one can be morally opposed to murdering and stealing wthout needing to think God exists and that he is against them.  One can also favor laws against murdering and stealing for ammoral reasons-- that allowing them will lead to a more divided, violent and less secure community, for example.

       The sam is true of "sex laws."   If one accepts that everyone else does not have to follow one's own preconceived prejudices, it is possible to identify moral opposition to certain sexual behaviors that are not motivated by a belief in God and understanding that God condemned such acts, and it is also possible to identify ammoral reasons to oppose reasons to believe certain sexual behaviors should be prohibited. when you go a step farther from outlawing sexual behavior to outlawing legal recognition of relationships the ammortal arguments become even more clear.

      It woulf be quite possible for me to be an atheist, believe there is nothing morally wrong with homosexual behavior but still oppose gay marriage" or other "civil union" type legislation that would impact me directly or indirectly in the pocketbook. If there are governmental benefits that must be provided upon allowing marriage or union, my tax money helps provide them. if laws require employers or other 3rd parties to grant benefits to married or "unionized" partners that cost money too and there might just be people who don't give a hoot about any of the issues except the bucks.

       

    Parent

    Nice... (none / 0) (#6)
    by Noor on Tue Mar 06, 2007 at 12:39:49 PM EST
    OT:  so this is your other hangout.  Cool!  I'll have to hang out at this bar more often, since I appreciate your analysis on a range of matters quite a bit.

    Back to the post:  Your understanding of the anti-establishment clause concurs with what I was taught from childhood in the 1960s all the way through my gen-ed requirements for my BA.  I've never understood where the bogus argument for tearing down the separation of church and state originated.  I've always thought it was utter garbage.

    I don't mean redundant (and I'll say it anyway), but, given what we've all witnessed over the last few years, it seems to me that the Constitution as a whole has suffered some erosion -- yeah, I know, huge understatement.  The point I want to make is that the undermining of habeas probably scares me more than all the rest, excepting the separation of powers.  Without habeas protections, the rest of the Bill of Rights and other equal protection clauses/amendments are extremely vulnerable.  Now I may be wrong, and if I am, BTD, I fully expect you to take this reply apart and send me to American government study hall.  ;->  

    If this argument against church-state separation ever becomes the consensus interpretation, then all sorts of mischief will ensue.  Goodbye medically supervised abortion and contraception.  Goodbye conscientious objection.  And we'll forever be at war in the Middle East for reasons I am reluctant to expound upon at length.

    Homophobia is not apolitical in any way (none / 0) (#7)
    by Dadler on Tue Mar 06, 2007 at 01:20:55 PM EST
    BTD, you wrote
    "...but that I also don't have a problem with unless the believers want to turn them into legal prohibitions."

    You don't think they want to and try to all the time?  A gay person's life is still held hostage in many ways by social and legal restrictions on the books and in the hearts ONLY because of the overrepresented influence of organized religion in supposedly secular politics.  Same with public education.  That it's friggin' 2007 in the free United States of America, and we STILL can't just teach real sex ed. in schools (controversy over condoms in 2007???), or teach comparative religion, that "creation science" is in court all the time, hell, that a gay person still has a good chance of being assaulted just for being gay, well, that says that organized religion is having much more effect on public policy and behavior that you seem to realize.  

    Separation of Church and State. (none / 0) (#8)
    by Jon Dorian on Thu Mar 08, 2007 at 08:29:10 AM EST

    The first Amendment states that "Congress shall make no law respecting an establishment of religion...."

    Establishment: a public or private institution with a code of laws such as an established church.

    Established Church: a church recognized by law as the official church of a nation or state and supported by civil authority.

    Did the Framers of the Constitution want separation of church and state? Yes they did! And the following example is the reason why:
    On Oct. 7, 1776, the General Assembly of Virginia was besieged by petitions protesting discrimination. At the time the Church of England was the American religious establishment in the colonies for whose support all were taxed regardless of affiliation. Seventeen days later, the Presbytery of Hanover presented a memorial arguing for religious freedom. The following is taken from that memorial: "...it is at least impossible for the magistrate to adjudge the right of preference among the various sects that profess the Christian faith, without erecting a chair of infallibility, which would lead us back to the Church of Rome."---Annals of America, volume 2, 1976 edition concerning the "Declaration on the Free Exercise of Religion."

    There are many more examples to be found in the Annals of America, volumes 2, 3 and 4, which cover the years 1755 to 1820; examples showing that the Founders did not want a church-state form of government. The Founders did not think that true religious freedom could be had if, for example: Baptists were taxed to support a Presbyterian church-state form of government, or if Presbyterians had to pay taxes to support a Baptist church-state form of government.

    Again, the first amendment says that Congress shall make no law respecting an establishment of religion; but it does not say that congress shall make no law respecting religion. What it does say is that congress shall make no law forbidding the free exercise of religion, and that, in itself is a law respecting religion.

    In the same pages of the "Annals of America" can be found many examples showing the Founders did want religion (the Christian religion) to guide our state government.

    In 1798, Benjamin Rush, signer of the Declaration and member of the Cont. Congress, wrote an essay on Independence and Education. In his essay he said: "...the religion I mean to recommend in this place is that of the New Testament....MY ONLY BUSINESS IS TO DECLARE THAT ALL ITS DOCTRINES AND PRECEPTS ARE CALCULATED TO PROMOTE THE HAPPINESS OF SOCIETY AND THE SAFETY AND WELL-BEING OF CIVIL GOVERNMENT."--Annals, volume 4, 1976.

    In George Washington's farewell address, he wrote; "With slight shades of differences, you have the same religion, manners, habits, and political principles...."

    Washington was saying the American people had different Christian denominations. There is more than a slight shade of difference between Christian and Islam, or Christian and Atheism. In fact, the following quote from Oliver Ellsworth, member of the Continental Congress and Chief Justice of the Supreme Court from 1796-1800, shows that during Washington's time, there was a law against practicing Atheism openly: "...while I assert the rights of religious liberty, I would not deny that the civil power has a right, in some cases, to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and detriment. For this reason, I heartily approve of our laws against drunkenness, profane swearing, blasphemy, and professed atheism." ---Annals, volume 3, 1976.

    Back to George Washington farewell address he said that religion is one of the pillars of government: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports....Let us with caution indulge the supposition that morality can be maintained without religion. ...reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle....It is substantially true that virtue or morality is a necessary spring of popular government."--Annals of America, volume 3, 1976.

    John Adams believed religion was necessary for freedom: "It is religion and morality alone which can establish the principles upon which freedom can securely stand."--John Adams, Religion and the Founding of the American Republic, Library of Congress.

    John Adams also believed that virtue was necessary: "Honor is truly sacred, but holds a lower rank in the scale of moral excellence than virtue. Indeed, the former is but a part of the latter....If there is a form of government, then, whose principle and foundation is virtue, will not every sober man acknowledge it better calculated to promote the general happiness than any other form?"--John Adams, the Foundation of Government, Annals, volume 3, 1976.

    And, John Adams believed that it was men's duty to worship God. A Massachusetts State constitution with a Bill of Rights was drafted by John Adams and ratified on June 15, 1780. Article II OF THIS Bill of Rights stated: "It is the right as well as the duty of all men in society publicly, and at stated seasons, to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained in his persons, liberty, or estate for worshipping God in the manner and season most agreeable to the dictates of his own conscience..."--Annals of America, vol. 2, 1976

    Jefferson believed that schools should promote religion, morals, and manners with good government: "The plan for the free schools is taken chiefly from the plans which have long been used with success in Scotland and in the eastern states of America, where the influence of learning in promoting religion, morals, manners, and good government has never been exceeded in any country."--Thomas Jefferson, Annals, volume 3, 1976.

    On July 13, 1787, several months after the Dec. of Ind. was signed, the Continental Congress passed the Northwest Ordinance, an ordinance regulating land expansion and the forming of new states. This ordinance shows that the Continental Congress expected schools to teach religion and morality along with knowledge: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

    This quote is from Noah Webster, the creator of the Webster Dictionary, is more proof that schools were to teach religion and morality: "My wish is not to see the Bible excluded from schools but to see it is used as a system of religion and morality..."--Annals, volume 3, 1976.

    Another quote from Benjamin Rush, one of the signers of the Dec., tells us that the principals and morals, of those who are to teach our children, should be examined by (Christian)religion: "...the only foundation for a useful education in a republic is to be laid in religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments.... Call upon the rulers of our country to lay the foundation of their empire in knowledge as well as virtue...Let the schoolmasters of every description be supported in part by the public, and let their principles and morals be subjected to examination before we employ them."--Annals, volume 3, 1976.

    Another quote from Oliver Ellsworth, member of the Continental Congress and Chief Justice of the Supreme Court from 1789-96, tells us that it is our duty to vote for people who support (Christian) religion: "If we mean to have those appointed to public offices who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters...."--The Annals, volume 3, 1976.

    Regarding our constitutional government, Alexander Hamilton, New York delegate to the constitutional convention, and secretary of treasury under Washington wrote: "For my own part, I sincerely esteem it a system which, without the finger of God, never could have been suggested and agreed upon by such a diversity of interest."--Annals, volume 3, 1976.

    James Madison said: "Before any man can be considered a member of society, he must be considered a subject of the Governor of the universe:"--against religious assessment, Annals, volume 3, 1976.

    Alexis De Tocqueville could see that freedom had to come with responsibility and that religion provided that responsibility: "...whilst the law permits the Americans to do what they please, religion prevents them from conceiving, and forbids them to commit, what is rash or unjust."-- 19th-century observations on the American republic.

    Our nation was founded on the Christian religion. The purpose of the 1rst amendment is to protect the people form being taxed to support any one Christian denomination. It is not, however, for the purpose of preventing Christian morals guiding our Republic.

    Jon Dorian