Saturday, November 04, 2006

AMENDMENT I (part two)

"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."

Bill of Rights
Of all the amendments in the bill of rights, one of the most misunderstood, mis- interpreted, and deliberately skewed sections is the first. Judges, pundits, and lawmakers have looked at this amendment and picked parts they liked to expand and add to and with the parts they didn't like, they weakened, negated, and ignored instead. The freedom of the press is nearly absolute in the United States; it's almost impossible to actually take successful legal action against a newspaper, for example. But the freedom of religion each year it seems erodes and crumbles a bit more.

The story of the Mayflower is still a fairly well-known one in the United States, in which puritans who were a persecuted religious minority in England chartered to sail to the new world, to this new country that was being colonized. They had permission to land and colonize at Virginia from the London Company, but poor weather and problems with the ship forced them to land further north in September of 1620. Setting foot on the land the first solid part they touched they named Plymouth Rock, which today is disappointingly small to people who've heard of it all their lives.

These religious refugees, persecuted in England, established a home in the new world and after nearly starving the first winter due to poor policies regarding land and crops, survived only by assistance from local natives. From this colony, more spread as other refugees joined the flight from England. In England, like the rest of the known world, there was an established religion for each country. In France it was Roman Catholicism, in Turkey it was Islam, and in England it was the Church of England, a quasi-Roman Catholic offshoot formed when Henry the 8th got sick of having to obey the Pope.

The Church of England under then-king James (the man responsible for the King James Bible and other deeds) was heavily persecuting anyone who dared think differently about religion. James was Roman Catholic, as England at the time often swayed between Anglican and Roman Catholic rulers. By his death, James was Anglican, but even then he did not tolerate dissenters who varied in their faith from the Anglican faith. These dissenters were not allowed to set up shops in cities, let their children go to schools, even own land at some times. They sought a new place they could practice their faith freely and prosper away from their homeland, but remained loyal to England and King James.

As the colonies grew and matured, they each began to establish their own religions. By the time the US constitution was finalized, nine of the thirteen colonies had an official religion, with only two (Maryland and Rhode Island) had no official religion and allowed religious freedom. Christianity was the dominant religion of the time, and like all faiths had members who saw their belief as the only truth and thus no other faith should be tolerated or allowed. For most of the colonies, and indeed later many states, the laws required a Christian confession to hold public office.

Many of the philosophers that the thinkers of the day relied on for their theories and ideas of liberty either lacked a considered conclusion on religious freedom or held that one ought to be Christian, such as John Locke. Of the founding fathers, the most vocal proponents of religious tolerance were James Madison, George Mason, Thomas Jefferson, and Patrick Henry. Henry and Mason held that one ought to tolerate other faiths, Jefferson and Madison held that one should have freedom of conscience to believe and think what one would.

PuritanBut it was Roger Williams, the founder of the Rhode Island colony (the smallest state in America), who is considered the father of religious freedom in America. He split with John Cotton on the topic of liberty and was banished from the Massachusettes colony over his dispute. "Forced worship stinks in God’s nostrils," he said in a letter, and opposing the idea of using the civil power to compel a single religious ideal or faith, he warned:
"If the civil magistrates be Christians or members of the church, able to prophesy in the church of Christ, ... they are bound by the command of Christ to suffer opposition to their doctrine with meekness and gentleness, and to be so far from striving to subdue their opposites with the civil sword, that they are bound with patience and meekness to wait if God peradventure will please to grant repentance unto their opposites... The sword may make a whole nation of hypocrites."
Williams argued that forced religion did violence not only to the civilization it was practiced in, but to the faith its self. Faith is a private issue in terms of acceptance or rejection, he argued, and while one ought to believe and obey God, that is between God and the person in question. It was Williams whose concept of Rhode Island as the "Sewer of New England" became the more palatable "melting pot" of America: many things gathering to become one. Like Martin Luther before him, Williams believed that a skilled and capable pagan could be a fine government figure, and that an incompetent, foolish, or corrupt Christian was far worse.

It was from this foundation, almost unheard of at the time, that religious freedom as a concept grew in the United States.

"We are teaching the world the great truth that Govts. do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Govt."
-James Madison

In 1779, Thomas Jefferson wrote the Virginia Act for Religious Freedom that provided, among other things, "that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever." The bill passed in 1786 and maintained that no "ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities."

Jefferson, not a Christian, held that religion was a matter between a man and God, and not an issue for civil government, save where it violates other rights in a manner that society ought not allow. For example, one may hold a faith where they chant prayers to Cthulhu and declare that they will cut the living heart out of unbelievers, and be free to do so. It is when they take action that they lose their right to exercise this faith, because it violates another right - life.

"Every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshiping the Deity according to the dictates of his own conscience."
-George Washington

This tension is where the argument and interpretations of today begin: freedom to believe and worship as long as you do not violate another's rights. At the time of the founding fathers, it was presumed that men were religious and that worship of God was not only reasonable and natural, but universal in one form or another - even Jefferson had a faith of sorts, rewriting the Bible to take out all the parts he didn't care for. The concept was never that religion ought not to influence a man or be part of their character. They even had no particular problem with some religious expressions being made in public office.

Look at the monuments and writings of the time, Washington DC is filled with marble edifices to memorialize acts and persons. Each one save a very few most recent ones has the word God, quotes from the Bible, and other plainly religious statements on them. These men were not concerned about statements of religion, it was an assumed part of life.

When Washington DC was first laid out and built, there were not enough churches to satisfy the desire for worshippers at first, so Thomas Jefferson held church services in the capitol building until more could be built. This was the same Thomas Jefferson who in a letter to a woman tried to explain the way he understood the first amendment to work by using the term "wall of separation" between church and state. The Treasury building was also used as a church temporarily, and no one saw a violation of the constitution in any of this.

For the men who wrote, discussed, and created the US Constitution and the first amendment, there was no problem with a prayer opening up each session of congress, and each new year of Supreme Court deliberation. To them having the 10 commandments chiseled into stone in the US Supreme Court building was a proper and rational thing to do, because of it's significance in the formation of western law.

The North Carolina Wesleyan College has a page with some helpful information and thoughts on religious freedom and the history of its understanding in the United States. In this document, O'Connor examines a few court cases that have attempted to define religion, without which it is not possible to understand freedom thereof:
  • the Reynolds approach - from Reynolds v. U.S. (1897) where Mormons were not declared to not be a religion, but at least one of their practices, polygamy, could be outlawed because it was not practiced at the time this nation was founded.
  • the Davis approach - from Davis v. Beason (1890) which required anything calling itself a religion to have: (a) a belief in God as Creator; (b) a system of morals which don't interfere with others; and (c) a system of worship civilized by Western standards.
  • the Ballard approach - from U.S. v. Ballard (1944) which said that it doesn't matter how preposterous, true or false, the doctrine is, the true test of what constitutes a religion is the sincerity of its members in miracles or other claims which cannot be proven.
  • the Seeger approach - from U.S. v. Seeger (1965) which required conscientious objectors to have some sort of belief in a Supreme Being; skepticism, atheism, and other sociological or philosophical positions, even if they have a moral code, do not qualify as religious beliefs.
I find all these definitions lacking, but I understand the motivation behind them. A philosopher does not have to be concerned with how effective or plausible a law or ruling will be for future rulings, laws, and interpretations by judges. So a judge or legislator looks for specific "handles" that the law can grab a hold of, rather than a conceptual statement that is more precise and proper.

To me, religion is:
any belief system based on faith and trust in scientifically and empirically unprovable tenants that largely defines and shapes one's worldview, is shared by others, and defined by specific points of agreement and doctrine.
This definition covers a lot more ground than the judges, but is much more difficult for laws to be written about and lawyers to pick up and use in a court case. Another reason this definition would be rejected by a lot of courts and lawyers is because it covers a broader section of thought and society than typically called "religious."

Religions do not all have a deity, nor do they all have a specific book they use. Buddhism is utterly lacking in any gods in most sects, for example. Some newer religions are more a psychological movement and are vaguely spiritual than anything else, and elude the definitions of the past that presumed a Judeo-Christian/Islamic model.

It is in this context, trying to understand religion, that we get to the most controversial of the first amendment clauses: "Congress shall make no law respecting an establishment of religion."

Called the "establishment clause" this section is intended to prevent the establishment of any religion in the United States. What, exactly does that mean? Again I'll turn to O'Connell's article for a useful summary. He argues that there are three basic ways to interpret this clause:
  1. the separationist position - this is the view of Jefferson, Madison, Professors Levy, Wills, and Justice Hugo Black that a solid "wall of separation" exists between church and state, prohibiting most, if not all, forms of aid or support for any religion.
  2. the non-preferentialist position - this is the view of Professor Cord and Justices O'Connor, Kennedy, and Souter. Professor Cord prefers to call it a non-absolutist separationist approach. It holds that even though a wall of separation exists, it only prohibits government from favoring one religion over another. Nondiscriminatory aid or support is permissible.
  3. the accommodationist position - this is the view of Professor Berns, Chief Justice Rehnquist, and former attorney general Edwin Meese that the only thing prohibited is the establishment of an official national religion. Chief Justice Rehnquist has, in fact, called the metaphor of "wall of separation" bad history.
Which of these is proper? In truth, if you look, you can find support for any one of these three in the writings and history of the freedom of religion in America. In fact, if you look at some writers, such as Jefferson and Madison, you'll find support for all three depending on the time, context, and purpose of the writings. I prefer to take a more overall view, rather than cherrypicking specific portions of writings, to look at their attitude, general approach, and writings by these men.

Jefferson MemorialFor example, while Thomas Jefferson did say this in a letter to the Danbury Connecticut Baptist association:
I contemplate with sovereign reverence that act of the whole American people which 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.
This has been used as the foundation for an entire system of interpretation, where there is thought to be an impenetrable wall between church and state, where church shall in no way and at no time influence, affect, or speak to matters of state. This interpretation is what compelled Judge Roy Moore to remove the 10 commandments monument he'd placed at a court building in Alabama (although, as I said, they are chiseled into the marble walls of the Supreme Court building in Washington DC). This interpretation is what leads courts to rule that a nativity scene or religious Christmas Carols on government grounds is a violation of the first amendment's establishment clause.

What does then President Jefferson say in context, what does the rest of the letter say? Written January 1, 1882, the entire text reads:
To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.


The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which 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. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson
Jan. 1. 1802.
Now notice a few things here.
  • President Jefferson requests prayers from these men
  • President Jefferson personally states a faith in a "common father and creator of man"
  • Matters of government are in regard to actions only, not opinions
  • The reason for this separation is the rights of conscience
Now given the previous note about Jefferson's use of the capitol building as a church, this changes the context and meaning of this "wall of separation" completely. Jefferson's argument is not based on the idea that religion taints government and is to be kept entirely to one's self. He simply states a basic fact of government as liberty demands: government is about doing things and taking action. It is not about opinions, beliefs, or personal thoughts. You can think, believe, and hold whatever opinions you wish in government because of the rights of conscience, according to Thomas Jefferson. It is what government does in tangible action where religion's wall should stop.

This is a subtle distinction but important as an example of how far the courts and modern ideas have gone wrong. For Jefferson using government property for a church service was acceptable and reasonable. He thought this was not a problem for two reasons. First, because it served the needs and will of the people, and second on Sunday there was no actual government taking place, so the building was empty and ready for use. Having a nativity scene in front of a government building was not an issue for the man who had this chiseled into his memorial:
"I have sworn upon the alter of God eternal hostility against every form of tyranny over the mind of man."
Golden ArchesThe alter of whom? Thomas Jefferson understood that putting a Nativity Scene in front of a government building or even holding church services there on off days did not transform that building into a church or establishment of religion any more than putting McDonalds arches out front makes it a fast food restaurant.

Because the establishment clause was based on all that dreary history I started out with in the beginning of this overly long essay. It was designed to prevent by law any state or federal government from choosing a religion and making that religion the official one of the land. It was meant to prevent what the colonies and what the countries the colonists had fled from earlier had done.

An established religion is the religion of the land, one that not only must be recognized and obeyed by any government official but other religions are discouraged. Taxes and laws will support the official religion, but not others, and further these other religions will be often persecuted or by law hindered from advancement and success. Some religions may even be banned. That is what established religion looks like, not children singing Silent Night in a public school.

The free exercise clause is so closely tied to the establishment clause at this point they are almost indistinguishable. But look at the wording of these clauses more carefully: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" What are those first four words?


In the years after the signing of the Constitution, this seems to have faded into near invisibility. If I sing Oh Holy Night at an Oregon Department of Revenue office party, I have not passed any laws establishing religion nor violated freedom of exercise. This simple fact of the plain wording in the constitution cannot be avoided. If no law has been passed by congress to do either of these acts, establishment or prevention of free exercise, then the first amendment has not been violated. In many cases, common sense and plain thinking is obscured by lawyers and judges who are more focused on practical aspects of law rather than what the law plainly says.

There is no right to not be offended, there is no right to avoid being confronted with religion. If your anger, discomfort, or sense of guilt and shame is so overwhelming when someone is openly religious near you that you feel compelled to go to court to stop them, perhaps it's time to think deeply about yourself and why that may be. If you don't happen to like someone expressing their religion, do the same thing that religious person does when you express your irreligion or disdain thereof: ignore them and go on with your life.

Surely someone who believes themselves stronger than the wretches who must lean upon the crutch of religion can be strong enough to face the presence of someone with whom they disagree without fleeing to the courts weeping about feeling offended.

This is part of the Greatest Document series.
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Blogger lance said...

Well written. You brought some items to light that some people seem to forget about the origins of this country.

5:42 PM, November 04, 2006  

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