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In response to:

Getting Back To Religious Freedom

Doug Indeap* Wrote: May 24, 2014 7:13 PM
It is important to distinguish between "individual" and "government" speech about religion. The constitutional separation of church and state does not purge religion from the public square--far from it. Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise his or her religious views--publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties, they effectively are the government and thus should conduct themselves in accordance with the First Amendment's constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. While figuring out whether someone is speaking for the government in a particular circumstance may sometimes be difficult, making the distinction is critical. While the First Amendment undoubtedly was intended to preclude the government from establishing an official religion as Mr. Charles notes, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form an official religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. Separation of church and state is hardly a new invention of modern courts. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.
No, the Supreme Court does not "get to dictate absolute reality" (whatever you mean by that), but, yes, it does get to decide what the Constitution means. And it has decided--with good reason--that when the 14th Amendment was adopted in 1868 guaranteeing "persons" certain rights, the understanding and intent of those drafting and ratifying that amendment was that "persons" encompassed those who have been born. That is now the law. You may have a personal opinion about what you regard as persons and murder and such, but that is all it is--your personal opinion. Feel free to have your say and even conduct yourself according to your own opinions. Don't feel shocked, though, if the rest of us have our say and conduct ourselves according to our own opinions and the law.
I understand that you consider a fetus a "baby" and "person." Do you understand that I don't? Nor does the Constitution per the Supreme Court. As it happens, I and every other person have the freedom to act on our own beliefs in that regard, and are not constrained to act according to the beliefs of you or others. So, you do your thing, and I'll do mine. Neither of us has to like the other's choices. You plainly don't like mine, and--just so you'll know--I don't like yours. And there we are. Let's just wish each other a nice day.
I'm intrigued by your objection/question: "What business does the government have requiring anyone to affirm or confirm their religious beliefs for the sake of a anything?" Do you feel the same way about the government's insertion in 1956 of an affirmation of a god ("under God") into the pledge it prescribes for citizens to confirm their allegiance to the nation?
Don't you suppose that if qualifying employers wish to be exempt from the law owing to religious objections, the least the government can expect of them is that they raise their hands and say so? Otherwise, how is the government or anyone else to know that they want an exemption?
You may not like paying money to the government and you may not like what the government does with the money, but those are garden variety gripes common to most taxpayers. Such gripes hardly amount to being forced to act contrary to one's conscience. Should each of us be exempted from paying some portion(s) of our taxes so we aren’t thereby “forced” to pay for making war, providing health care, teaching evolution, or whatever else each of us may consider wrong or even immoral? If each of us could opt out of this or that law or tax with the excuse that our religion requires or allows it, the government and the rule of law could hardly operate.
Yes, and it is just as obvious that the founders separated the government and religion by (1) establishing a secular government on the power of "We the people" (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Under the norms of the day, governments generally were grounded in some appeal to god(s); the founders' departure from this norm and avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was as plain as ringing a bell. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. It is telling that in the entire history of our nation, no court has held that the First Amendment means as little as you suppose. You keep talking about "absolute absence of religion." That is hardly the law. The Supreme Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to some governmental statements or actions about religion as ceremonial deism or some such. As the Wake Forest paper serves to show, notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).
Madison is indeed only one contributor to the Constitution, though one central enough to be acclaimed the father of the Constitution. Note, though, that I already pointed out the features of the Constitution reflecting its separation of church and state. Of those, you’ve said nothing. If it is law you seek, note that shortly after the founding, President John Adams (a founder) signed, with the unanimous consent of the Senate (comprised in large measure of founders), the Treaty of Tripoli declaring, in pertinent part, “the Government of the United States of America is not, in any sense, founded on the Christian religion.” No need to resort to reading tea leaves to understand that. This is not an informal comment by an individual founder, but rather an official declaration of the most solemn sort by the United States government itself—the sort that the Constitution declares is the highest law of the land. As for Madison’s vetoes, I already told you that he did so on the ground that the bills were contrary to the First Amendment’s establishment clause. Why you suppose I should now refute you “guess” that he did so for other reasons, I can only wonder. No need to guess. You can read his veto statements yourself. A little research of this sort should also reveal that he pocket vetoed a third bill that would have exempted from import duties plates to print Bibles (for much the same reasons, as he explains in his Detached Memoranda).
Oh, I understand that you dispute that separation of church and state is a constitutional principle, really I do. Do you understand that I can defend the principle, as I have said, against such attacks without also undertaking to debate whether it has been properly applied to the facts of a particular case, e.g., the San Diego case. Thank you for the invitation, but I’m interested in the former, and not so much the latter. As for the way you understand words used in these comments, I’ll just note that resorting to peculiar and malleable understandings leads to a tiresome discussion of semantics—like this one. Here, we are discussing the law of separation of church and state, and in that context I use the term “secular” in the common sense generally corresponding to that concept. I understand that the term can be used in other ways, such as those you assert, but then in discussing separation of church and state that only introduces confusion. If you are interested in also discussing the notion of secularism you have in mind, perhaps that should take place outside the context of discussing a court case on separation of church and state. As for asking me to show an example of public property not owned by the government, what are you getting at? You earlier asserted that “if something is ‘public,’ that means ‘government,’” and I noted that notion was peculiar and limited. I can do something, e.g., exercise my freedom of religion, in “public” anywhere, whether on or off property owned by the government. That is entirely different than the government itself doing something, e.g., saying something about religion. Capisce?
As a I-need-to-see-words-all-men-can-understand sort, you need to explain why you find the constitutional principle of "separation of powers" to be "obvious" even though that phrase is no where to be found in the Constitution. While you're at it, you might try the same for "checks and balances."
As it happens, now retired Justice Stevens addressed just that type of concern in an earlier case concerning the Mojave Desert cross. At the outset of his opinion, he stated: "I certainly agree that the Nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message." Later in his opinion, he discussed the understandable concern that removal of the cross might offend some. Noting that Justice Alito spoke of “avoiding the disturbing symbolism associated with the destruction of the historic monument,” he stated: "But we surely all can agree that once the government has violated the Establishment Clause, as has been adjudged in this case and is now beyond question, a plaintiff must be afforded a complete remedy. That remedy may sometimes require removing a religious symbol, and regrettably some number of people may perceive the remedy as evidence that the government 'is bent on eliminating from all public places and symbols any trace of our country’s religious heritage,' [Alito's opinion, p. 4]. But it does not follow that the government can decline to cure an Establishment Clause violation in order to avoid offense."
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