Thursday, May 05, 2005
A Secular Government
When freedom is truly the will of the people, the laws that govern us are not imposed, but rather, they are accepted. We instinctively know and accept fundamental freedoms for all. Governments cannot play God, deciding on a whim who lives and who dies. The expectation of life and liberty are shared by all that accept and participate in a free society.And now (new) see this dialogue between Boomr and SC&A about freedom and whether order may flow from freedom. I believe that the only way a state of order that does not rely upon despotism for its maintenance may be established is through freedom. One of the major differences between the ideologies of these two men is that Boomr seems to think of freedom largely in the individual sense but that SC&A considers freedom to be not just lack of constraint upon the individual but also the ability of individuals, in concert, to modify the set of rules by which they live.
In a post below about the Dominion and my baffled search for it, Dingo commented and I have been thinking about his comments. In part, he wrote:
I want to preserve this also. We just see how as different. I believe that the only way to ensure the freedoms to worship, is for the government to remain secular. It is like we teach kids about sex. Yes, you can wear a condom and be safer, but the only 100% effective way to guarantee you won't get pregnant is abstinence. You can try to allow a little religion and politics to mix here and there and try to make sure it doesn't go to far, but there is the chance it going to go to far and break the condom. You may think you are being 'safe', but the only way to be 100% effective of ensuring religious freedom FOR EVERYONE is to keep the government abstinent.Now Dingo is a smart guy who really does believe in those awkward constitutional concepts such as freedom of speech so don't react to what he hasn't said. Part of the problem in all this is defining a "secular" government. I don't think that is quite what the founders intended. They definitely intended to prevent any religion from being established. Back to the First Amendment just so we are all on the same page:
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.This is all about freedom in its most absolute sense, and for centuries the courts have been arguing about where to draw the line. One idea is that government ought to be religion-neutral. You might want to see this BNN article written by a man who claims to be pretty atheistic. I sympathize with his opinion here:
Both sides of the aisle are jumping on the bandwagon and using religion as both a weapon and a crutch. On the far left fringe, they would like to remove 'In God We Trust' from our money, a uninformed ridiculous idea. On the far right, they would like Christianity to be the national religion, something the Constitution clearly prohibits. The far left would like you to think that religion has no place in our public schools and venues, example, the recent 10 Commandments fight in many states and counties across our country. The far right pushes the 'people of faith' speak in your face, it is like they honestly believe there are not people of faith in every political party.and:
Finally, there is no doubt, even from a non-believer, that God, in some form, was part of the very fabric this country was cut. We, as citizens, need to step up and clearly send a message to our Government that, we are tired of religion being dragged into every debate and conversation. At some point we have to say. "ENOUGH ALREADY".The yawping about religion in public life does seem to me to be somewhat of a diversion from more substantive issues. Yet when columnists in major newspapers (no, not just MoDo) are inveighing against the perils of the theocracy, we are going to see a corresponding push back. Frank Rich writes of the press onslaught against those who are religious in his Washington Post column:
From March 24 through April 23 (when The Post twinned Colbert I. King's "Hijacking Christianity" with Paul Gaston's "Smearing Christian Judges"), I counted 13 opinion columns of similarly alarmist tone aimed at us on the Christian right: two more in The Post by the generally amiable and highly communicative Richard Cohen headlined "Backward Evolution" and "Faith-Based Pandering"; one by his colleague, the urbane Eugene Robinson, "Art vs. the Church Lady" (lamenting that "the pall of religiosity hanging over the city was reaching gas-mask stage"); and three by Dowd, two by Paul Krugman and three by Rich in the Times.and:
Evangelicals are concerned about the frequently advanced and historically untenable secularists' view of the intent of our non-establishment/free exercise of religion clause: that everything that has its origin in religion must be swept out of federal, and even civil, domains. That view, if militantly enforced, constitutes what seems dangerous to most evangelicals: the strict and entire separation of God from state. This construct, so desired by some, is radically out of sync with much in American history that shows a true regard for the non-establishment of religion while giving space in nearly all contexts to wide and free expressions of faith.(Frank Rich also can't spell "precedent".) There is a big difference from enforcing the First Amendment's prohibition against establishing a religion or religions and enforcing a separation of all religious thought, symbolism or expression from the public sphere. And the Supreme Court has struggled with where to draw the line. So, I propose a challenge to those who hold various views on this issue. What do you think of the Rosenberger v. Rector and Visitors of the Univ. of VA? Whose reasoning do you agree with here?
The fact is that our founders did not give us a nation frightened by the apparition of the Deity lurking about in our most central places. On Sept. 25, 1789, the text of what was later adopted as the First Amendment was passed by both houses of Congress, and subsequently sent to the states for ratification. On that same day , the gentlemen in the House who had acted to give us that invaluable text took another action: They passed a resolution asking President George Washington to declare a national day of thanksgiving to no less a perceived eminence than almighty God.
The case relates to an admittedly religious journal which applied for funding from the Student Fund. The university would not give it, because it had a policy of not funding religious activities, defined as an activity that "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality". The SC decided that the University of Virginia could not fund other types of journals while refusing to fund those written from a religious viewpoint.
There were four opinions. The majority opinion was written by Kennedy. He writes that there is a conflict between free speech and the Disestablishment clause, and that in this case the university was discriminating by viewpoint, thus violating the First Amendment:
Thus, in determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations.In other words, it is an unconstitutional violation of free speech to set a policy discriminating on funding journals on the basis of whether their content contains religious viewpoints. Waxing eloquent, Kennedy pointed out the logical effect of trying to discriminate on this basis:
The Guideline invoked by the University to deny third party contractor payments on behalf of WAP effects a sweeping restriction on student thought and student inquiry in the context of University sponsored publications. The prohibition on funding on behalf of publications that "primarily promot[e] or manifes[t] a particular belie[f] in or about a deity or an ultimate reality," in its ordinary and commonsense meaning, has a vast potential reach. The term "promotes" as used here would comprehend any writing advocating a philosophic position that rests upon a belief in a deity or ultimate reality. See Webster's Third New International Dictionary 1815 (1961) (defining "promote" as "to contribute to the growth, enlargement, or prosperity of: further, encourage"). And the term "manifests" would bring within the scope of the prohibition any writing that is explicable as resting upon a premise which presupposes the existence of a deity or ultimate reality. See id., at 1375 (defining "manifest" as "to show plainly: make palpably evident or certain by showing or displaying"). Were the prohibition applied with much vigor at all, it would bar funding of essays by hypothetical student contributors named Plato, Spinoza, and Descartes. And if the regulation covers, as the University says it does, see Tr. of Oral Arg. 18-19, those student journalistic efforts which primarily manifest or promote a belief that there is no deity and no ultimate reality, then undergraduates named Karl Marx, Bertrand Russell, and Jean Paul Sartre would likewise have some of their major essays excluded from student publications. If any manifestation of beliefs in first principles disqualifies the writing, as seems to be the case, it is indeed difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. Plato could contrive perhaps to submit an acceptable essay on making pasta or peanut butter cookies, provided he did not point out their (necessary) imperfections.What he is saying here is that inevitably such a prohibition will be applied either to the point that all deep philosophical speech will be prohibited, or solely against certain instances of such speech. And he's right, because look at the current fears expressed about the "Dominion" in public writing. All of this is focused purely on certain religious doctrines which are perceived to be a threat against society while ignoring others.
Souter and Stephens dissented, and Souter wrote the dissent. Among other points, Souter identifies the fees collected for the Student Fund as taxes, and states that funding such a journal violates Madison's argument against funding any religion out of taxes. And Souter disagrees with Kennedy's peanut butter cookies legal theory, arguing:
Now, the regulation is not so categorically broad as the Court protests. The Court reads the word "primarily" ("primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality") right out of the Guidelines, whereas it is obviously crucial in distinguishing between works characterized by the evangelism of Wide Awake and writing that merely happens to express views that a given religion might approve, or simply descriptive writing informing a reader about the position of a given religion. But, as I said, that is not the important point. Even if the Court were indeed correct about the funding restriction's categorical breadth, the stringency of the restriction would most certainly not work any impermissible viewpoint discrimination under any prior understanding of that species of content discrimination. If a University wished to fund no speech beyond the subjects of pasta and cookie preparation, it surely would not be discriminating on the basis of someone's viewpoint, at least absent some controversial claim that pasta and cookies did not exist. The upshot would be an instructional universe without higher education, but not a universe where one viewpoint was enriched above its competitors.Here I was struck with the horrible realization that if Souter's doctrine had won out, the university's positon would have had the legal effect of barring tax money spent on supporting scientific research or journals. The epistemogical theory underlying the scientific theory maintains that an ultimate reality does exist, is consistent and ordered, and that it can be approached, understood and described by the application of certain formal rules of thought, collection and presentation of evidence. This takes us back right back to Descartes. There are competing world views, by the way. (It is this underlying scientific axiom which led Richard Lindsay of MIT to describe the IPCC doctrine of global warming as religion rather than science. He is epistemologically correct, too, because those who are arguing for a consensus on global warming based on moral principles instead of evidence are violating the rules of scientific thought, which must be morality neutral.)
Thomas dissented from Souter's dissent, saying that the Student Fund was not taxation, but the student's property, and that Madison's prohibition against funding churches from tax money was aimed at funding of specific churches, not any sort of religious expression:
But resolution of this debate is not necessary to decide this case. Under any understanding of the Assessment Controversy, the history cited by the dissent cannot support the conclusion that the Establishment Clause "categorically condemn[s] state programs directly aiding religious activity" when that aid is part of a neutral program available to a wide array of beneficiaries. Post, at 13. Even if Madison believed that the principle of nonestablishment of religion precluded government financial support for religion per se (in the sense of government benefits specifically targeting religion), there is no indication that at the time of the framing he took the dissent's extreme view that the government must discriminate against religious adherents by excluding them from more generally available financial subsidies.O'Connor concurred with the majority decision but wished to keep the scope and application of the decision narrowly based on the specific circumstances of the case. Eventually, she bases her decision on the matter of implicit choice:
This case lies at the intersection of the principle of government neutrality and the prohibition on state funding of religious activities. It is clear that the University has established a generally applicable program to encourage the free exchange of ideas by its students, an expressive marketplace that includes some 15 student publications with predictably divergent viewpoints. It is equally clear that petitioners' viewpoint is religious and that publication of Wide Awake is a religious activity, under both the University's regulation and a fair reading of our precedents. Not to finance Wide Awake, according to petitioners, violates the principle of neutrality by sending a message of hostility toward religion. To finance Wide Awake, argues the University, violates the prohibition on direct state funding of religious activities.and, discussing Witters v. Washington Dept. of Services for Blind:
When two bedrock principles so conflict, understandably neither can provide the definitive answer. Reliance on categorical platitudes is unavailing. Resolution instead depends on the hard task of judging--sifting through the details and determining whether the challenged program offends the Establishment Clause. Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each case. See Lee v. Weisman, 505 U.S. 577, 598 (1992) ("Our jurisprudence in this area is of necessity one of line drawing"). As Justice Holmes observed in a different context: "Neither are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law. Day and night, youth and age are only types."
We thus resolved the conflict between the neutrality principle and the funding prohibition, not by permitting one to trump the other, but by relying on the elements of choice peculiar to the facts of that case: "The aid to religion at issue here is the result of petitioner's private choice. No reasonable observer is likely to draw from the facts before us an inference that the State itself is endorsing a religious practice or belief."So, I'm asking Dingo and anyone else who wishes to comment by answering the following questions:
- Which written opinion do you think best represents the constitution's meaning?
- If you believe government must be "secular", define secular. Be careful, this is a trick question. If you answer "that which does not rest on religious precepts", you will have to define a religious precept.
Update: No Oil For Pacifists responds to Boomr's judgement that government should be secular and that what is secular is "what is not beholden to or constrained by a religious philosophy". NOFP links and quotes Cantwell:
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.Our freedoms are so constructed that if a majority come to subscribe to Boomr's outlook on same-sex marriage or any other issue, Boomr's views will become law. The constiitutionally provided medium for such a victory, however, must be the opinions of the voting public and not a discrimination between whether views are religious in source. However the debate over the issue, as the Cantwell opinon asserts, may not be constrained by anyone's judgement of another's opinion in order that "enlightened opinion and right conduct" may prevail.
As to defining the constitutions meaning, to me, that is a much tougher assignmment. How do you define a living thing? How do you define that which provides the balance that defines our society- that which gives us as individuals and as a society the freedoms we enjoy, in that exquisite balance. I once wrote of a convesation I had with a judge, "It has been said that there is a reason Lady Justice is blind and Lady Liberty holds a torch. Justice must remain blind, to be arrived at without favor or influence. Liberty must always shed light on what is the natural human instinct to excel and exceed."
The constitution is the map, however imperfect, we use to define and navigate the absolutes truths we know freedom represents.
Christianity isn't a religion. It never was and it never will be. it's a collection of religion that holds the belief of Jesus' divinity in common. it's a pretty disparate group of religions.
See, this is where this whole "theocracy" thing falls off the rails. Folks talk about Christianity as if it's some unified juggernaut, but it isn't. In any given group of Christians, you are going to find people who differ wildly on basic principles and doctrines. We will never see a "Christian" theology become the law of the land because it doesn't exist and thanks to the nature of the groups involved, it never will.
Sorry, I know that was a bit OT, but it's a bugaboo of mine. ;)
I agree with your quibble. There is not one massive cohesive "Christian" right. It's a myth. That was the point I was trying to argue to Dingo. It's the same thing as trying to claim that Jews and Christians all have the same political views because we have the five books in common. The ideas that most Christians would agree on are ideas that the majority of American citizens would agree on.
There are very few people in the US who believe shooting people down unless it is to defend yourself is the right thing to do. If you asked a religious person to justify their position they might respond in a different way than an unreligious person, but the moral idea is the same.
We go back to our constitution for the rules, and look to our own experiences, history, philosopy, science and sometimes religion for the reasons. Legislators have to deal with difficult ethical and public policy issues.
Judges just need to look to the constitution, law and legislative intent to interpret the law, not morality or ethics. To me the particular religious or non-religious background of a judge means little. It is the depth of their knowledge of the law, their reasoning ability and their commitment to upholding the law and the constitution that matters.
As to defining secular, isn't half of the problem that "Thou shalt not kill" is both a religious and a non-religious precept? It's a moral position, granted, but no one wants to live in a society without morals.
I think almost everyone in the US would agree that our laws and government should be set up so as not to cause harm or damage to individuals as far as possible. But all of the debate comes in when we try to figure out the "as far as possible" bit.
It seems obvious to me that everyone in the US ought to be dedicated to preserving that public space which does not favor one group or another by definition. But it isn't obvious to everyone, SC&A. I am not sure that even a majority of the people in this country would agree that laws should be set up so as not to infringe upon the liberty of the individual. Many have more coercive ideas.
I was shocked, for instance, to read some months ago on DU a discussion in which the majority point of view was that people should not be permitted to counter-demonstrate against a gay-rights demonstration. The feeling was that this was hateful and should be outlawed. Several of the posters thought hate-speech was outlawed by the US Constitution. A very nice person tried to explain the First Amendment. Several of them were quite surprised and impressed by this strange encounter.
Many of our younger people have no education in constitutional principles and have never read it. Their underlying impression is that the Constitution was formed to protect minority rights, not to protect individual rights (which, of course, also protects minorities).
Thus it seems very logical to them to say that gays must be permitted to demonstrate but straights may not, and that Muslim professors must be allowed to inveigh against Jews but that Jewish students would be indulging in abuse by inveighing against Muslims. And that is one reason why so many people feel that Christian thought or maybe evangelical thought should be banned from the public sphere. Because it is a large group their feeling is that those ideas are inherently oppressive and dangerous.
A municipality in Florida last year put up a menorah next to a Christmas tree but banned a nativity scene on the basis that the nativity scene violated the disestablishment clause but the menorah did not. I don't think the average person in America does understand the First Amendment.
My preference would be for people to state their views and principles as abstractly as possible in the public square with as little reference to religion as possible. For one thing, it's good communication. Yet I also feel perturbed at what I see as a growing lack of belief in and respect for those "absolute truths we know freedom represents".
I think you may be out of the mainstream there. I don't think most people have much respect for the constitution as it stands any more.
I am guessing what you were getting at with the what "I haven't said" was the whole freedom from religion. People confuse this issue. No, we don't have a guarantee FROM religion. I cannot redress the government to stop the building of a church in my neighborhood. I cannot stop a individual from putting up a nativity scene on private property. I cannot stop Jews from wearing Yakimas in public. BUT, the constitution does guarantee a freedom FROM religion where the government is concerned. The establishment clause expressly prohibits making any laws in regard to religion. Since the only branch of the government that can make laws is the legislative branch, this means the judicial and executive branch are as constrained by this clause. I do not have a guarantee from religion when talking to you, but I do when I am being addressed by a judge.
As for a secular government - to me, that is one that neither facilitates, nor restricts religious expression. It is a government that does not infringe on a child's right to wear religious garb (cross, Yakima, head scarf, etc.) to school, but does not participate in organizing prayer. People often say, "but our school is made up of all Christian students, why can't they have school prayer?" Do you allow Koran time for predominately Muslim schools? What is predominately mean? 90% one faith? 75%? 51%. What if a school is 40% Jewish, 30% Christian and 30% Muslim? Does the 40% win even though it is not a majority since it is the most? A secular government is one that does not organize Christmas celebrations, nor does it stop private citizens from coming together in the town square to celebrate on their own. *Side note - if a town chooses to allow a nativity scene to be displayed by Christians, it must allow display of all religions. Even if there is one Hindu in town, he/she must also be allowed to display their faith.
I don't mind if a politician is a devote Christian who publicly expresses his devotion as long as he knows that his personal beliefs and public duties are separate.
There is absolutely no reason to have religious artifacts at courthouses. We have our own laws derived from multiple source (religious and secular). A courthouse is there to administer laws, not save souls.
We no longer live in a nation that is 95% Christian as when the country was founded. We cannot be mired in the past on this issue. We are a diverse nation. It was easier when you had a mainly Christian society. Then you could have a generic Christian blanket. But now, we are too diverse and have to give up the notion that we can have a generic pan-Christianity that does not diminish the rights of other religions.
Generally, I like how Madison put it when talking about a bill that would have funded Christian teaching in public schools:
"Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.
Because the proposed establishment is a departure from the generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens... Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the [Spanish] Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The maganimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent, may offer a more certain respose from his Troubles."
But your freedom from religion is not what everyone considers freedom from religion. There is a point of view which would argue that freedom of religion really requires freedom from religious people and all religious values and symbols in the public square.
So for instance you can read an article such as Jane Kramer's in The New Yorker which argues that personal expressions of religion should be barred from schools as they are in France, because subjecting children to such a framework is or may be inherently abusive. Both Kramer and the interviewer take it for granted that America is "tilted toward theocracy".
And that is what is disturbing some evangelicals. It is the idea that a religious person should not be allowed to openly admit their beliefs without becoming unacceptable in public life.
When these people talk about "secularism" they are talking about views such as Kramer's, not neutrality about religious, philosophical etc views in public institutions sponsored by government. Because if you make it unacceptable to have any position which might be religious, you are handing over the ethical reins of the country to a group which must inevitably form its own set of guiding principles that in essence will form the "cultural" part of a new secularist religion.
I think nobody sane wants judges who make up the law for themselves. That is not the function of a judge. Whether one makes up the law based on religious principles or social principles or political principles ruling based not upon the law or constitutional principles but upon one's own judgement is an obvious abuse.
The law itself is the secular framework within which our society can operate peacefully; the body of the law represents what we have agreed upon as the foundation for our common activity and social interaction. I'm not saying it is always right, but it does represent our social agreement at any time.
No, no, a hundred times, no. This couldn't be more incorrect.
You could point to a "sect" of Islam or Judaism or Hinduism that we, and they, would identify as the orthodox part of that religion, you are identifying the "sect" that holds the vast majority of the membership. There is an majority sect of Islam, Judaism, and hinduism, and when it speaks, you can fairly say that it speaks the the majority of those in the religion.
You also made another mistake when you said "BUT, the constitution does guarantee a freedom FROM religion where the government is concerned. The establishment clause expressly prohibits making any laws in regard to religion", dingo. That's not what the establishment clause says.
That clause is very specific about two things: 1) that it affects only Congress' ability to pass laws, and 2) that it prevents those laws from respecting "an establishment of religion". That leaves a lot of latitude for religion and government to interact.
It does not prevent, for instance, the State of New York from deciding that it wants to name zorostrianism as it's official religion. It doesn't prevent Congress from passing a law that affects more than one religion. It doesn't prevent the people of a municipality from deciding that it wants to put up a nativity scene, if that's what the majority of voters decide. It simply prevents our Federal government from giving any one religion ("an establishment") a leg up on the others.
The Founders understood something pretty important when they wrote and ratified the First Amendment - that people, if given the ability to work things our for themselves, generally do so as fairly for the largest number of people as possible. They also understood how important religion is to the health of a free society, so long one is prevented from taking over the government (as it had in the country they fled).
What a lot of religious people don't understand is why they can't be trusted not to impose a theocracy when they've given no indication that's what they want. They don't understand why so many other religions are protected and even given places of great honor in the public square, but theirs is not. Their confusion is, I think, warranted.
Yes, yes, a hundred times, yes. I am sorry, but it is you who are incorrect. Christianity has an orthodox sect. Does it speak for you? And which orthodox sect are you referring to? Greek, Russian, Romanian? Catholicism is the largest Christian sect in the world. Does the pope speak for you? What about the KKK? They are Christians. Please, tell me which sect of Islam speaks for all Muslims? Sunni? Shia? Sufis? Wahhabis? Kharijites? Alawites? Have you not paid attention to the news in Israel? Please tell me which sect speaks for them all, because I sure as hell can't tell. Where as there are over 400 sects of Hindi, I will not even start down that path. But yet, religions are monolithic in the core beliefs. Christians believe in Christ, Muslims believe in Allah, etc.
"That clause is very specific about two things: 1) that it affects only Congress' ability to pass laws,"
Well, yes and no. It affects congress' ability to pass laws, but it doesn't only affect congress. Since the executive and judicial branches are subject to the laws passed by congress, they have de facto restriction also. You are also forgetting the 14th amendment which extends the bill of rights to the states.
"2) that it prevents those laws from respecting "an establishment of religion". That leaves a lot of latitude for religion and government to interact."
Please, explain. How does the government interact without legal (legislative) authority of some form?
"It does not prevent, for instance, the State of New York from deciding that it wants to name zorostrianism as it's official religion."
A) most states have their own establishment clauses. B) see again the 14th amendment. C) even if New York did name Zoroastrianism as its official religion, it couldn't place fire temples in public schools or it would lose all federal funding.
"It doesn't prevent Congress from passing a law that affects more than one religion."
We have had this conversation before. "An" when used before a singular noun that is followed by a restrictive modifier means "any", not "a" as in the 1st order of a class as you are using it. You cannot turn "an establishment of religion" into "one religious establishment." Instead, it would be "any religious establishment." Thus, government is still excluded.
"The Founders understood something pretty important when they wrote and ratified the First Amendment - that people, if given the ability to work things our for themselves, generally do so as fairly for the largest number of people as possible."
I hate to sound snotty, but you are unbelievably wrong on this one. The reason for the Bill of Rights is because the founding fathers DID NOT believe you could trust the majority to be fair and partial. The Bill of Rights is not to allow the the majority to work things out. It is there to protect the individual rights of the minority from the majority. It recognized that each person is a minority of one.
"What a lot of religious people don't understand is why they can't be trusted not to impose a theocracy when they've given no indication that's what they want."
The majority of religious people do not want this. I agree. The problem is the few on the religious right who do want it are very vocal. Your voice has been drowned out by theirs, just like my voice has been drowned out by the extreme secularists on the left. Currently, our political situation is beholden to the fringe on both sides. so, if the confusion is warranted for religious people, it is equally warranted for secularists.
As for the Founders -- you're wrong again there, Jimmie. The Founders knew that "the people" wouldn't get it right, which is why we have a constitutional republic and not a straight-up one-man-one-vote democracy on all issues (i.e., why the Senate has 2 members per state instead of the House's members depending on population). Plus, the Founders feared the "tyranny of the majority," meaning they were afraid of what 50.1% of the country would do to the other 49.9% if given the chance. Thus, the bill of rights, which would be thoroughly unnecessary if the majority were trusted to get it right all the time.
"They also understood how important religion is to the health of a free society." Bunk. They feared what religion run amok could do to a country if it mixed with politics (as you said, they ran away from a country -- indeed, an entire continent -- where that happened). They also knew that people wouldn't just give up their religion merely because the government told them they couldn't practice it, so they struck a balance -- you churchgoers stay over there, we government workers will stay over here. We won't intrude on you, so don't intrude on us.
As for the questions that MaxedOutMama asked, here're my answers:
1. I think O'Connor did the best job of explaining it. There's a balance that must be struck between competing rights -- the right of an individual to be free to practice his religion, and the right of other individuals to be free from the government's imposition of religion on them. The case you describe raises just such a conflict. The ultimate answer for the university is: you either fund EVERY viewpoint, or you fund NONE. You can't fund a political journal without also funding expressions of other viewpoints. This, in my mind, doesn't necessarily violate the establishment clause, because it's not PROMOTING religion, but merely allowing the free exercise thereof without regard to the content. I would, however, expect the court's opinion to require that the university allow such funding to go to other religious viewpoints (and atheist viewpoints) as well; otherwise it does become promotion of one religion.
2. Despite my agreement with O'Connor's concurrence with the majority, I still think government should be secular. Secular in my definition means "not beholden to or constrained by a religious philosophy." Case in point: the debate over gay marriage. What NON-RELIGIOUS purpose is there for a ban on gay marriage? What is the spark for the sudden need to ban such marriages? The only answer I can devise is the belief in religious tenets banning homosexuality. There is simply no non-religious purpose to the law. Such a viewpoint should not control the government, especially when roughly 10% of the population actively lives in violation of those principals (by being gay) and a much larger percentage doesn't necessarily hold the same religious intolerance of homosexuality. You ask me to define a religious precept: my answer is any precept that does not serve a secular purpose in addition to adherence to faith. Give me a secular reason for banning gay marriage, and I'll agree that my definition of religous precept needs refining.
Yeah, yeah, yeah... we all know I have a propensity to run spell check without paying attention. Sure, go ahead and make fun of the lysdexic kid.
I like Kennedy for the fundamental thinking (most like the founders, they wanted genuine free and meaningful speech and thought, which is what the First Amendment defends) but O'Connor for the rules of application. But I am aware I am not a SC justice, for which we can all be thankful.
Yes on the 14th Amendment covering speech at the state level. (Tell me more about this Yakima town, I find it strangely fascinating.... I had never heard of the constitutional rights of cows.)
However I don't think government can ban religious speech or thought from government spaces, just not endorse, promote, fund it, ban it etc. Some take the idea of separation as absolute physical separation, rather than no government affect on or effect of religion. In practice taking a particular religious symbol and placing it in a public space can be endorsing and may thus be banned - however you can't move from that to the banning of religious speech and thought entirely. One extreme is as bad as the other.
That is a fine distinction, and one which those poor SC justices have had to struggle with again and again. To make this clear, there are some in the US who would like to forbid an observant Jew from wearing a yarmulke in a government office or someone reading the Bible on their lunch hour in a government office. They feel it establishes an overly religious atmosphere, as if you could catch faith like cooties.
Boomr, the founders did not want to ban religion or religious thought. If you meant to imply that they viewed it only as an unavoidable evil you are wrong. Jefferson himself, while he was determined not to endorse religious belief publicly because he felt religion should remain a private matter, wrote in a letter to a friend of his something to the effect that the teachings of Jesus formed the most perfect moral guidance for humanity. But the founders saw clearly the evil of a continuous religious struggle for predominance. After all, England had suffered great turmoil for that reason. Looking at the ME, I think we can all agree upon their wisdom.
"You ask me to define a religious precept: my answer is any precept that does not serve a secular purpose in addition to adherence to faith. Give me a secular reason for banning gay marriage, and I'll agree that my definition of religous precept needs refining."
You ask what sparked the sudden need to ban same-sex marriage. It was judges beginning to find a right to same-sex marriage in state constitutions. We do not ban what is not possible; when people saw that same-sex marriage might become possible they decided to overrule it first at the federal level, and then have started to go state-by-state.
The problem I see is that you are presuming to judge the motivations of all the people who voted for those bans as religious and serving no other purpose. That is a right that you can not arrogate to yourself in a democracy. You are presuming to be the judge of everyone's motives and thoughts, and even the SC doesn't try to do that. Whether they ever will find a right to same-sex marriage in the Constitution or whether society will change its mind is beyond my ken.
Also, I was surprised by Oregon's passage of the amendment. I don't for a moment believe that all of those who voted for it did so on the basis of religion. In GA, which voted something like 76 or 77% to ban any such arrangements, I know of some religious people (like me) who voted against it, and more non-religious people who voted for it. I can assure you that 77% of the people in GA don't have strong religious convictions. So more than just religion is at work here. Far more.
You may call it prejudice, but there are people who reject religion who are arguing that the net effect would be to damage society. Just because their arguments haven't convinced me doesn't mean that my thinking is correct and theirs is wrong. I can assure you that I am not qualified to be the cultural arbiter of the US, and if nominated, I will not run. If elected, I will not serve.
Additionally the First Amendment has been consistently interpreted by the SC to prohibit government from disadvantaging religious speech or religious sects as firmly as it prohibits advantaging it. If you don't believe me let me know and I will dig up some cases.
In effect, we preserve our secular space by not letting law judge the source of thoughts or motivations, but rather seeing what we can agree on and enshrining our shared understandings in law. Once we have made law, it must then be interpreted only by reference to the body of law. And our popular consensus may not violate the liberties established in the constitution, thus protecting minorities against unreasonable but popular opinions. So the "secular" government you wish to preserve did originally and always will arise out of the body of the convictions and reasoning of the people as to what is right and workable.
That gives all of us a level playing field and limits the scope of our dissension. You and I need not debate the wrath of God, the existence or non-existence of God, etc or why I believe it is wrong to smack my neighbor in the face. Instead we may proceed straight to the objective question at hand, such as why my neighbor had to paint his house mauve and whether I have the right to do anything about it under the law. It's efficient. It maximizes consensus and minimizes dissension. It's pragmatic and workable.
Now our government's actions must be unconstrained by religious philosophy because it is a government of law rather than belief. But the passage of those laws will obviously be somewhat beholden to our various belief systems whether atheistic or religious or any of the thousand other variations.
While your basic proposition is unconstitutional, it also has several other logical disabilities.
I think you are being ridiculous to assume that we or any segment of us can rationally sort out what in our culture is "beholden" to religious philosophy and proceed to eliminate it. And that is why I picked this case out of the approximately 9 thousand First Amendment cases out there. Kennedy is right when he observes that trying to eliminate thought or speech based on any workable abstract definition of religion (fitting all cases and manifestations of religion) reduces us all to mindless inanity. Go back and read the peanut butter cookie paragraph again.
There is a well-known mathematical proof that any set of logical propositions must either contradict itself or have reference to an axiom not proven within the system. By trying to construct a wholly logical framework you doom yourself to illogic.
As an example, let's take our current marriage laws. Are they religiously based? Well, maybe, but polygamy was an accepted practice in many religions as it still is today in the traditionalist wing of the Mormon church and under Islam. I am sure that one could argue our custom either as culture or as religion or that someone could come up with some sociological reason why marriages restricted to two people are the only possible workable pattern for society. But it would not convince me. And I have read some very convinced Muslim polemics that purport to show that allowing one man to marry several women is the only possible rational basis for conducting a society because it causes the minimum harm possible.
So in conclusion, you can't prohibit what you can't define and therefore you can't predicate the constitutionality of laws upon purely secular grounds. Yet once law that does not conflict with other preempting law has been passed, we can then restrict our government to a consideration and execution of that law and of nothing else.
PS: I hate to inform you of this, but there was a powerful religious component to the abolitionist movement both in England and in the US. One can justify slavery on many grounds (such as natural law, since we seem to know of no old society that did not practice some form of it), but that still doesn't mean it is "right". Yet how do you prove that it isn't right without reference to some abstract moral principle? That moral principle has passed into our culture, but it began as a religious principle.
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