Tag Archives: Establishment Clause

Religious Liberty? Hardly.

Historians tell us that the Establishment Clause of the First Amendment went through more than 20 drafts, with the Founders rejecting formulations like “there shall be no National Church.” The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” The courts have uniformly held that this language not only forbids the government from establishing an official religion or state Church, but also prohibits government actions that endorse or sponsor religion, favor one religion over another, or that prefer religion to non-religion, or non-religion over religion.

In other words, government is prohibited from playing favorites–from either benefitting or burdening citizens based upon their beliefs or lack thereof.

There’s constitutional principle, and then, of course, there’s real life.

A woman named Margaret Doughty, who has lived in the U.S. for 30 years, recently applied for US citizenship. One of the standard questions asked of applicants is  whether they would be willing to take up arms to defend the country. According to Ed Brayton over at Dispatches from the Culture Wars, Doughty replied as follows:

“I am sure the law would never require a 64 year-old woman like myself to bear arms, but if I am required to answer this question, I cannot lie. I must be honest. The truth is that I would not be willing to bear arms. Since my youth I have had a firm, fixed and sincere objection to participation in war in any form or in the bearing of arms. I deeply and sincerely believe that it is not moral or ethical to take another person’s life, and my lifelong spiritual/religious beliefs impose on me a duty of conscience not to contribute to warfare by taking up arms…my beliefs are as strong and deeply held as those who possess traditional religious beliefs and who believe in God…I want to make clear, however, that I am willing to perform work of national importance under civilian direction or to perform noncombatant service in the Armed Forces of the United States if and when required by the law to do so.”

Seems like a heartfelt and entirely acceptable position to me, but no. The immigration service responded by demanding that she “submit a letter on official church stationery, attesting to the fact that you are a member in good standing and the church’s official position on the bearing of arms.” In other words, unless she can demonstrate an affiliation with an established church with an established position on the bearing of arms, this 64-year-old woman cannot become a citizen.

The official position of the immigration service, evidently, is that atheists cannot have moral objections to killing other humans. (Nor, presumably, can members of churches without “official positions” against violence. If you are a Quaker, okay; if you are a Presbyterian or a Jew, not so much.)

When the U.S. still had a military draft, this same approach imposed a real burden on conscientious objectors who could not claim membership in a pacifist congregation. Eventually, the courts agreed that personal moral positions would be deemed adequate–but only if the individual claiming conscientious objector status could “prove” that he had long harbored such compunctions. Members of religious congregations could simply verify that membership; non-members and non-believers had to provide “clear and convincing” evidence of their beliefs, by bringing in people who would testify to past conversations, letters they’d written expressing pacifist sentiments, or the like.

You might think about that, and about Margaret Doughty, the next time some rightwing pundit whines about the advance of the secular hordes, or the (non-existent )”war on Christianity.”

Separation of Church and State and Buddhists

Dispatches from the Culture Wars has an interesting report on the removal of a Buddhist stupa from a national park in New Mexico. He quotes the local public radio explanation:

The National Park Service said Monday that park service will remove the ten-foot structure containing Buddhist relics from the park this week after getting an opinion from the Department of Interior’s solicitor general. The solicitor general ruled last month that keeping the Buddhist stupa violates the Constitution on established religion.

If this is actually the gist of the ruling, the lawyer with the solicitor general’s office must be one of the stupider people to actually make it through law school.

The Establishment Clause prohibits government from sponsoring or endorsing religious beliefs or observances. In determining whether there has been a breach of the rule, the Court considers whether a person of average intelligence, observing the display or incident, would assume that endorsement or sponsorship was present. So in the case of graduation prayer, for example, an invitation by the school to a clergyman and the inclusion of the prayer in the formal program is pretty clearly sponsorship. A group of students gathering spontaneously at the school flagpole to pray, without prompting or participation from teachers or school administrators, is not.

If a person of normal intelligence (perhaps that’s the problem!) encountered a Christian devotional display in a park, that person could reasonably assume it was government endorsement of the country’s majority religion.  No one in her right mind, however, would leap to the conclusion that a display of Buddhist artifacts was intended as anything other than an educational or artistic experience. (I can imagine the testimony of the New Mexico parks official now: “Yes, your honor, I placed that Buddhist stupa in the park in order to elevate Buddhist beliefs and send a message that Christians and Jews and Muslims worship false gods and are second-class citizens…”)

The really interesting question here is: who complained? And why?

I have my suspicions, and they revolve around the folks who believe the government should privilege their religion.

Thank You for Proving My Point….

It seems that each new day brings new evidence that too many Americans haven’t the foggiest idea what’s in the U.S. Constitution or what its provisions mean.

Exhibit #1: the large cross erected on public property in Dugger, Indiana. The huge cross with “Jesus Saves” prominently printed on it has been challenged by Americans United for Separation of Church and State. The town fathers–evidently recognizing a loser when they see one–agreed to move it rather than spending tax dollars on expensive and hopeless litigation. But residents are up in arms. My favorite quote came from the fellow who said people who were offended could just look elsewhere.

How much do you want to wager that he’d feel differently if the symbol on public property praised Satan? or Allah? or Karl Marx?

This is a recurring battle. As the courts routinely point out, the rules are pretty clear: government cannot sponsor or endorse religion. Government cannot sponsor or endorse atheism, either. Government must stay neutral when it comes to the expression of political or religious beliefs. Allowing a religious symbol on public property is an impermissible endorsement of that religion–exactly the sort of favoritism the Establishment Clause of the First Amendment forbids.

This sort of conflict is easy enough to resolve. Move the cross to private property. People will still see it.  Folks who reject this relatively simple fix are really giving away the game–no matter what they claim, they don’t just want people to see their message. They want government to endorse their message. They want special status and recognition for their religious beliefs.

Exhibit #2. Micah Clark. Again.

The AFA has its panties in a bunch–as usual–because the Indiana Chamber of Commerce is considering opposing the mis-named “Marriage Protection Amendment.”

Why oh why would the Chamber “want to see marriage unraveled and destabilized” in Indiana? Micah wants to know. Here’s a clue, Micah–that “destabilization” hasn’t happened anywhere that same-sex marriages are legal. Quite the opposite, in fact–Massachusetts, the first U.S. state to recognize same-sex unions, has one of the lowest divorce rates in the country.

Leaving aside the hysterical rhetoric and tortured “evidence” in the AFA’s Weekly Email, one sentence leapt out at me: “It is the people of Indiana who should decide on marriage.”

No, Micah, it isn’t.

In our system, we don’t get to vote on other people’s fundamental rights. We don’t get to vote to segregate black people, we don’t get to vote against interracial or interfaith marriages. We don’t get to vote to abolish jury trials, or to override restrictions on search and seizures. We don’t get to vote to make people Baptists or Episcopalians.

Justice Jackson said it best, many years ago, in West Virginia Board v. Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Maybe you don’t agree that people who are different from you should have the same civil liberties and rights that you enjoy. Fine. Don’t agree with it. But it is the law of the land, and you really ought to know that.

I wonder what new evidence tomorrow will bring….

“Morality” Policies and Political Realities

In Indiana, I cannot buy wine (or any kind of liquor) if I go to Costco or my local grocery on Sunday. Since–like most women in America today–I work during the week, Sunday is my preferred day to shop. Thanks to the Indiana legislature’s determination to protect my morals and their pocketbooks, I have the choice of making an extra trip, or changing my preferred shopping day, in order to buy wine.

As a matter of public policy, this is insane. I do not drink less because of this policy (actually, being a woman of a “certain” age, I pretty much limit my imbibing to one glass of red wine with dinner anyway). My dinner party guests are not deprived of a nice vintage due to this policy. It is simply inconvenient and annoying.

Periodically, there is an effort to change the law that forbids Sunday sales by groceries. We are seeing such an effort now, with advocates of change pointing out that we can drink at restaurants or bars on Sunday, so it seems silly and inconsistent to prohibit the purchase of spirits at the grocery.

What are the policy arguments being made by those defending the status quo? According to my morning paper, those arguments are:  1)Hundreds of neighborhood liquor stores might go out of business if groceries are allowed to compete. 2)There will be more drunken driving. 3) Remember the Sabbath.

Let’s take this one at a time.

  • If liquor stores cannot compete, then they should be allowed to fail. It is not government’s job to protect them, just as it isn’t government’s job to protect the corner hardware store from Lowe’s.
  • I hate to point this out, but the prediction that drunkenness, or drunk driving, will increase assumes that no one is drinking at those restaurants and bars, or buying enough liquor on, say, Thursday, to last until Sunday. This assertion is clearly not grounded in logic. Or reality.
  • Sunday isn’t MY Sabbath, nor is it the Sabbath of 7th Day Adventists, or atheists, or many others. And even if it were, the Establishment Clause prohibits the use of government to advance religion.

Of course, this was originally ALL about “it’s the Sabbath.” It was about reminding us heathens that this is a Christian (Protestant) Nation, thank you very much.  Most states have moved beyond this; not Indiana. Here in the Hoosier state, it has become a source of campaign cash from the liquor store lobby for those politicians willing to protect those stores from competition by making my life just a bit less convenient.

I’m sure they consider it a fair trade-off.