Theocracy: Church and State

I found a very interesting discussion on the separation of Church and State
here and thought I'd write my own little spiel on it. (And, I did promise to write on this topic in my post on Judicial Independence the other day).

Of course, my spiels are too long and involved to put in someone's comments section. So...here's my very own post.

Now I've noticed in a lot of blogs on this topic, such as this one, a lot of people (usually religious conservatives) are drawing attention to the fact that the phrases our courts use ("separation of church and state" and "wall of separation") appear nowhere in the Constitution.

What does the Constitution say?

Congress shall make no law concerning an establishment of religion, nor prohibiting the free practice thereof.

Now, obviously this is a two-pronged prohibition, and they work uniquely to balance each other quite well...in a way that is often ignored by both sides of the issue today.

The Establishment clause is designed to prevent the government from endorsing or favoring or giving support to some particular religion. This isn't enough, however, to allow the free practice of religion as a personal choice by individuals. The Free Practice clause immediately follows, preventing the government from coming in against private religious practice.

The "wall of separation" used by our courts is actually a very good metaphor to describe the intended function these two clauses. Where does it come from?

In 1802, Thomas Jefferson engaged in a correespondence with the Danbury Baptist association. They were concerned that, with the advent of a federalist form of government, their freedom to worship as they chose would be curtailed. Remember, many of the settlers came to the New World for this very purpose - because elsewhere, religious minorities were subject to secular laws that limited how they could practice their religion. The Baptists were still a minority at this point, so they worried.

In his reply, Thomas Jefferson gave a careful explanation of what, exactly, the First Amendment means in regards to the Church and the State. Here's an important quote.

Believing with you that religion is a matter which lies solely between Man & his God...[this] act of the whole American people...declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.

In an earlier draft of the same letter, Jefferson also mentions that in setting forth the duties of the President, for example, he specifically refrained from prescribing the occaisonal devotionals that Executives of other nations usually perform as a part of their role. The government of the United States was to be, specifically, a secular one.

Obviously, Jefferson's letter is not a legal document in itself, and has no force of law. However, when trying to figure out what exactly the First Amendment means by "establishment of religion", etc., the Court is well-advised to pay close attention to how this clause was explained by the leaders of the Constitutional Convention when the citizenry asked them about it. Thus, the Danbury letter is a very, very important document for the purposes of understanding that phrase in the Bill of Rights.

The term "wall of separation between church and state" as used by our courts today is the meaning accepted by the vast majority of credible legal theorists for the Establishment Clause. In court, challenges to issues such as prayer in schools, the ten commandments, etc....there are usually two messages being given out.

One is to the uninformed, legally illiterate but militantly Christian portion of the public: We want God back in our schools, etc., and we think "separation of church and state" is an invention of evil atheistic ACLU lawyers trying to secularize everything.

But they make no such argument in front of an actual judge, with real lawyers and legal scholars present. In front of people who actually know the law, the case is based on technicalities and fine differences between certain meanings of certain words...these cases are very hard to win, honestly. The purpose for the first message is to build up enough public support that judges will feel pressured to decide a technical case based on results-based popular demand.

Because the public argument is completely silly and baseless under the law. The "wall of separation between Church and State" was actually coined by Thomas Jefferson, one of the leading delegates at the Constitutional Convention, and that phrase expresses the generally accepted meaning of the Establishment Clause as it was meant from the very beginning!

So why wasn't this an issue back then? After all, people were supposed to have been far more religious back then than they are now right?

There are a number of things that go into that. At the time the Constitution was written, the fear was of religious persecution of religious minorities by a religious majority. Atheism as such probably existed, but only as an oddity of the extremely eccentric, etc. The colonists that formed the young United States had fled persecution that was of a religious nature - that is, the majority religions were (because they controlled the government) able to use the government to push their particular brand of religious practice on the religious minorities. To alienate, stigmatize, or even punish those who did not participate in the majority religious practice.

As a result, they sought to place in the Constitution safeguards that would prevent a majority from using the government power and influence as a religious tool. And they were quite successful.

At the time, however, because the most different form of belief seemed to be Deism or Universalism, there was still a strong theistic component to daily life. No one had any objection to the use of the Bible to teach reading in schools because...well...no matter what religious minority you were from, you at least believed in the Bible. "In God We Trust"...there was no concept of this being problematic because it was inclusive - there was nobody to object, everyone believed in God.

Today, this is not the case. There now exist religious minorities in the United States that are not based on the Bible. There are even religious minorities that do not believe in God. As a result, there is some upheaval because practices and ideas that were once nationally inclusive are now exclusive. Thus, if the government sponsors Bible teaching, it makes itself a sponsor of the Judeo-Christian religion against all other religions. There is no difference between this and if it were Catholicism at the expense of Protestants, or Methodism at the expense of Calvinists, etc. Under the First Amendment, the government cannot become a tool for the religious minority to use in order to prosyletize, pressure, or alienate members of religious minorities.

Now, there is a clear line to be drawn between what exactly is a part of the government, and what exactly is the realm of individual choice. Can the President quote Scripture in his speeches? Obviously. And if he were muslim he could quote from the Koran. Just as clearly, it would be inappropriate for a verse from the Bible to appear in legislation before Congress. If such a bill passed, it would have to be struck down by the courts.

But then there are grey areas. Government buildings: can they be used to display religious messages? Well...that depends, is there a plurality of religions represented there, or is this publicly-owned property being used only for one particular religion? It has to either be fair and even for everybody, or it has to avoid the whole topic altogether. And then, what about the school system? Where does the government-prescribed curriculum end and the individual teacher's personal beliefs begin? Hard to judge, really.

Actually, Dr. James Otteson, (who was incidentally one of my favorite philosophy lecturers at the University of Alabama) has published a very interesting article arguing that it's impossible for public education to be neutral on religion, advocating privatization as the only way to avoid violating the First Amendment.

The main problem is that over the years, the government has pushed its greedy fingers into so many pies that when these new religious minorities (such as atheism) started demanding their legitimate rights under the First Amendment...the project of secularizing the government suddenly looked a lot like secularizing everything.

The problem isn's the atheists. The problem isn't how the Courts are interpreting the First Amendment. The problem is that the government has managed to entangle itself so thoroughly with affairs that should be handled by churches, the private sector, and community organizations that it's going to take major upheaval to fix things so that the government isn't violating the First Amendment.

Christians should not be trying to stop or reverse the secularization of government. That process is inevitable, and it is thoroughly required by the supreme law of the land. If we really want to preserve our heritage and values, we should instead be trying to disentangle our government from functions it has no business being involved in.