Tue Jan 22, 2013, 03:18 PM
cthulu2016 (10,960 posts)
Separation of Church and State
It is important to not fall into the intellectual trap of thinking of promotion of religion and persecution of religion as separate things.
The framework of no government interference with Free Exercise and no government Establishment are two ways of saying the same thing, lest it be misunderstood.
The government should have NOTHING to do with religion. Nothing.
Some think the "establishment" line is government coercion. "Nobody is forcing anyone to..."
Like most truly awful arguments, this is self-refuting. Just spend ten seconds thinking about non-coercive things the government could do... like passing a law saying, "Salvation can only come through acceptance of thy Lord and Savior Jesus Christ, but this bill imposes no criminal or civil penalty on the hell-bound for their heresies because their eternity in Hell shall be sufficient punishment." That doesn't force anyone to do anything.
The Establishment line is anything other than government neutrality on the entire religious sphere, and mandates disengagement from it. Everything the government does is supposed to be secular in nature.
And no prayer worth the label is secular. Also, no prayer is neutral, vis-a-vis religion.
All promotion of A is denial of B, and visa versa. (We understand this fine with disparate impact in voting rights. Why can't the state have special buses to the polls in only white neighborhoods? That doesn't hurt black people, it just fails to help them. It is because making voting easier for X makes it relatively harder for Y in a sphere where the state is supposed to be neutral.)
What's the harm in a prayer to open a session of congress if it is general? Because a prayer is a prayer is a prayer. (And if the government is establishing the idea that a prayer is no big deal then that's a problem also because the government shouldn't have a view that prayer is trivial, any more than it should hold that prayer is vital.)
And to think that there are "good" prayers (optimistic, inclusive, not heavy on the miracles) is the same as saying there is such a thing as "good" religion (optimistic, inclusive, not heavy on the miracles).
You and I are free to say that optimistic, inclusive, not heavy on the miracles is nice, but the government cannot hold that view.
An aside... EVERYONE has beliefs in the religious sphere. Even pure agnosticism is what you believe about religious questions. And a person's choice to not believe anything is still their choice of religious viewpoint, and should be no lesser, to the government, than any other view. Hence the artful phrasing, "Establishment of religion." No *a* religion. The government cannot even establish religiosity itself, properly. (As RUSH said, the band, not the RW walrus, "If you chose not to decide you still have made a choice.")
If the Establishment Clause means anything then there is no such thing as good religion and bad religion, in the eyes of the government. (There are good and bad acts, in the eyes of the government, that may be religiously inspired... the state can outlaw polygamy, but cannot outlaw Mormonism, or outlaw only Mormon polygamy. Religion doesn't give you extra rights or fewer rights.)
And thus no such thing as a good or bad prayer.
This view is not anti-religion. It is only anti-religion if one is so vacant or brittle as to consider to government to be hostile to everything it does not endorse.
"Throwing God out of the classroom" is not anti-God. It is neutral. It guarantees that no religion is established through mandatory education, nor any religion discouraged.
A school can promote values, of course. A school says don't murder people. That sucks for a religion based on murder, but anti-murder is a sectarian value arrived at through reason. You don't need religion to want to have a low chance of being murdered. (A religion that calls for not doing homework is also out of luck.)
The "neutral" prayer, the harmless invocation, the ecumenical service, is an impossible animal, and trivializes religion... also a concern of the 1st Amendment. The government should not promote the view that religion is harmless feel-good bullshit.
"We pray to whatever God there is that Congress will do the people's will."
That is about as neutral an invocation as Congress could open a session with, but it still manages to be incredibly controversial.
It is an endorsement of 1) there is a God, and 2) this God hears prayers, and 3) this God affects the quality of our legislation.
That only sounds neutral if one believes that the range of human belief is limited to devotion to a person's choice between the more liberal forms of the great monotheisms.
A theme in the "stop whining about prayers" argument is that we have always had prayers... that they are long-standing tradition.
Yes, that is true. So what?
The constitution was amended n 1868 to make black people, in the eyes of the law, fully human and fully equal citizens. And a fricking Century later (1967) the US Supreme Court struck down laws saying that a black person and a white person could not legally marry. Was the century of action at odds with what the Constitution plainly said not traditional? Could we not say that since there were anti-marriage laws 80 years ago that we should look to them to see what the 14th Amendment was supposed to mean?
Say someone argued this to you: "If the 14th Amd. was actually meant to confer equality to all then we wouldn't have seen a century of those laws... people closer in time to when it was written obviously thought it didn't mean squat."
Would you find that persuasive?
I don't, no more than I find the "This doesn't violate the 1st Amendment because it has been around for a long time," argument to have any merit.
If one does not think that the State arranging to have somebody ordained in a religion come beseech God that the nation have a good harvest, or wise leadership, or whatever is on the agenda, is not a bright-line 1st Amendment problem then one is really saying, "I am comfortable with this, hence I don't care."
The First Amendment is not there to create a world we are comfortable with. It is there to create a government that has nothing to do with religion, pro or anti, on the founding theory that any government involvement with the religious sphere can lead to bad trouble.
Our entire system of government implies some anxiety. Nobody gets everything they want because almost everyone in their secret heart wants to oppress somebody else, so we create a government that is like a robot operated by men, but programmed with a few rules such that it cannot oppress anybody. The scheme of the government is supposed to be better than a man can be. The elected officials will try to oppress and the Constitution will spit out the punch card as a non-executable instruction.
People can circumvent the system, of course, but the system is supposed to try to thwart our very natural, predictable moves toward comfort. Is having "In God We Trust" on the money an unendurable burden for atheists? No, it isn't. But it is disturbing that something so deeply, unambiguously anti-constitutional could have been done, and as recently as the 1950s.
We should not have a "common law" 1st Amendment made up of everything people have gotten away with. We should have a squatter's rights Constitution where an ongoing violation rewrites the document if it remains unrepaired long enough.
The bill of rights is not about promoting what the majority thinks. It has always been understood that a majority would elect representatives from the majority faith, fired up with the ideals of that majority faith, catering to the views of that majority electorate, and that faith would influence government thereby. There is no lack of religious influence in a democracy, which is one reason the First Amendment acts against that very natural effect of majority and tradition... because it was presumed that the effect was not desirable in and of itself, and a thing that must be walled off from government precisely because it will naturally take government over. That is a bug, not a feature.
Is an inaugural prayer unconstitutional? Depends on whether the state is promoting the ceremony. It is, at the very least, distastefully anti-constitutional.
Is an invocation to open a Congress of a Court session unconstitutional? Yes... about as much as slavery, or having an emperor, or state editorial control of all newspapers. It is bright line in-your-face standing on a table screaming unconstitutional.
(Courts have upheld such prayers, of course, as well as "In God we Trust", etc.. The Supreme Court also said that the internment of Japanese-Americans was fine, and struck down a zillion child-labor laws as unfair to children. These things happen.)
But such things, like the thousands of 20th Century laws in direct contradiction of the 14th Amendment, can exist in seeming perpetuity because they were good enough for our grandparents, or some such.
That acceptance of socially comfortable abrogations of Constitutional ideals does not, however, suggest that anyone who feels betrayed by their government every time it trots out a preacher needs to get over anything.
And if anyone who just wanted to bitch about Obama jumped on the bandwagon, so what? Who says a thing does not make it wrong or right. The thing is the thing...
7 replies, 740 views
Separation of Church and State (Original post)
Response to cthulu2016 (Original post)
Tue Jan 22, 2013, 03:52 PM
longship (25,127 posts)
1. Thank you! Beautifully put, my friend.
It is difficult to lay down cogent arguments on these issues. I try, and fail, regularly here. But you have laid down the crux of the issue here in a way I apparently could not.
Thank you. You have erudition and rhetorical talents to which I have not been blessed, so to speak.
This post is why I love DU. You can always learn something new from others of like mind.
I would like to interject a phrase coined by Madison at this point (I think. It may be Jefferson.). The tyranny of the majority.
My summary: No majority should be able to use their political power to overrule the law in our Constitutional form of government.
One recognizes that what is or is not constitutional is whatever a majority of SCOTUS says at any time. That fact is why I love the fact that Barack Obama was re-elected our president.
Response to cthulu2016 (Original post)
Tue Jan 22, 2013, 04:05 PM
leftyohiolib (5,917 posts)
2. the 1st amendment says that the government cant use laws to force you into a religion nor can it use
laws to prevent from religion-they didnt want a church of england here-prayers can be led and done in public but they cant tell YOU you have to pray\. that's the extent of the 1st amendment
Response to leftyohiolib (Reply #2)
Tue Jan 22, 2013, 04:32 PM
cthulu2016 (10,960 posts)
3. That is a rather extreme (and rare) view
Can a public school teacher lead a prayer as long as the kids are free to not chant along?
Can the government fund a Billy Graham tent-show tour, since nobody is required to attend any Billy Graham tent show?
Can the government donate a million dollars to the Mormon Church? Doing so doesn't force anyone to convert to Mormonism.
Your view is to the right of even the most conservative jurists, which is seldom where one wants to be. Even Scalia recognizes that non-coercive government promotion of religion is establishment. I would have thought that everyone recognized that... that the line is drawn well short of actual coercion.