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Separating church and state
Posted at: Mar/30/2010 : Posted by: mel
Related Category: Watching America,
To this point I have made a conscience effort to avoid writing about religion, but in America you can’t discuss politics without eventually touching on religion. Separating church from state is a long running argument. The borders have been continually shifting just to make the target even more elusive.
I should begin with a few historical notes for a reference point to build on. The “separation of church and state” is both a legal and a political principle that is derived from the first amendment of the United States Constitution. The words are "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." The authors of our Constitution were disciples of the English philosopher John Locke and the earliest writings on this subject can be found in his pen. The phrase "separation of church and state" is generally attributed to an 1802 letter by Thomas Jefferson to the Danbury Baptist where he spoke of the “Establishment” and the “Free Exercise” clauses of the First Amendment (read the First Amendment to better understand.) For those of you who are into the details, this means the widely quoted phrase "separation of church and state" is not actually in the Constitution, rather...it is our interpretation of the "Establishment clause" based on a letter from Thomas jefferson.
So after 250 years you might ask “why write about this?” Honestly, the arguments both legal and sociological are just as heated and just as undecided now, as at any time in our history. Recent example of this controversy include “the Ten commandments monument at a Minnesota courthouse”, “inclusion of the ‘so help me God’ phrase in an oath”, “inclusion of ‘under God’ in the Pledge of Allegiance”, “Christmas as a federal holiday”, “the tax free status of religious institutions”, “the presence of religious symbols such as crosses on public property”. The aforementioned is just what comes to mind from the last 10-20 years. Many of these arguments have gone all the way to the Supreme Court where the rulings have appeared contradictory.
Now for some Early American History:
Many of the early immigrants to America such as the Puritans, Pilgrims, and Catholics left Europe during religious conflicts seeking a place to practice the faith of their choice without governmental persecution. The colonies of Plymouth, Massachusetts Bay and others were founded by Puritans, Calvinists, and others specifically as church based colonies. New Your, Virginia, the Carolina’s and Georgia were officially Church of England colonies. Uniquely, Roger Williams and William Penn both established colonies that ensured freedom to religious minorities. Obviously, many of our early colonies were created by people fleeing religious persecution and then creating religious segregation. Fear of the Catholic hierarchy’s power prompted a Maryland law in 1701 barring Catholics from holding public office. With a small amount of research, this list of examples could become very extensive. It would be easy to argue that many of the early colonies were founded by people fleeing religious persecution only to very hypocritically set up their own very restrictive enclaves of faith specific community life.
As a side note it is important to realize that the advantage to established church based colonies is that each of these churches took community level responsibility for looking after their own local indigent population. Since everyone tithed to the local church, that institution was well positioned to assume this role in the community for feeding and looking after the local poor.
The abolition of church based communities and states ended with the revolution in 1776. Despite the revolution, it took many years and many state based changes over a long period of time to whittle away at this system. This following is just a short sampling of legal changes that took place in ensuing years.
a.) In 1789 the Georgia Constitution was amended as follows: "Article IV. Section 10. No person within this state shall, upon any pretense, be deprived of the inestimable privilege of worshipping God in any manner agreeable to his own conscience, nor be compelled to attend any place of worship contrary to his own faith and judgment; nor shall he ever be obliged to pay tithes, taxes, or any other rate, for the building or repairing any place of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or hath voluntarily engaged. To do. No one religious society shall ever be established in this state, in preference to another; nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles."
b.) In 1780 Massachusetts required every man to belong to a church, and permitted each church to tax its members. This was objected to, and was later abolished in 1833.
c.) Until 1877 the New Hampshire Constitution required members of the State legislature to be of the Protestant religion.
d.) The North Carolina Constitution of 1776 disestablished the Anglican Church, but until 1835 the NC Constitution allowed only Protestants to hold public office. Until 1876 it allowed only Christians (including Catholics) to hold a public office. Article VI, Section 8 of the current NC Constitution forbids only atheists from holding public office. In 1961 the Supreme Court rules this clause to be unenforceable but to my knowledge it has not been removed from the law.
e.) Tithes for the support of the Anglican Church in Virginia were suspended in 1776, and never restored. In 1786 prohibitions were implemented forbidding any coercion to support any religious body.
James Madison is considered one of the founding fathers of the United States, principal author of the constitution, father of the “Bill of Rights” and fourth President of the United States. Madison wrote extensively on the subject of "total separation of the church from the state”. He declared, "Practical distinction between Religion and Civil Government is essential to the purity of both, and as guaranteed by the Constitution of the United States." In a letter to Edward Livingston Madison further expanded, "We are teaching the world the great truth that Governments 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 Government." Much of our current definition of government and religious separation come from Madison's firm belief and ensuing writings on the subject.
The first significant legal test of separation came in 1878 involving a Mormon polygamy case. In this case Justice Stephen Johnson Field cited Jefferson and Madison in ruling that government could set standards for “social duties” and define behavior that might be considered “subversive of good order” thus ruling that polygamy be outlawed. This is an important case because it was the first time our legal system outlawed a religious behavior and indicated government has some responsibility for social standards as opposed to this being the exclusive bailiwick of religious institutions.
One of the first real national statements on the separation of church and state came with the 1791 “Treaty of Tripoli”. In the treaty it is stated in Article 11: “…the Government of the United States of America is not, in any sense, founded on the Christian religion; ...”.
Supporters of the separation of church and state believe this article confirms that the government of the United States was specifically stating to the world they were religiously neutral.
As 19th century Theological historian Philip Schaff observed: “The American separation of church and state rests upon respect for the church; the European anticlerical separation, on indifference and hatred of the church, and of religion itself…. The constitution did not create a nation, nor its religion and institutions. It found them already existing, and was framed for the purpose of protecting them under a republican form of government, in a rule of the people, by the people, and for the people.” The reference to “the people” is important here because at the time many European monarchies’s viewed other than state sponsored religion as a threat to their power.
I have not even touched on heated cases such as school prayer, but I wanted to develop some historical basis. Drawing a line in ever shifting sands is virtually impossible. More importantly, no matter where you place the line of separation, someone can legitimately point to a historical precedent that supports their point of view.
For my own purposes I am going to look briefly at monuments on public land that are obvious religious symbols. The first case that comes to mind for me is the 2005 case arguing about the display the Ten Commandments as part of courthouse displays in Kentucky. While the ruling was a narrow 5-4 decision, the ruling supported continuing the display as part of an American legal tradition. The court further stated the display should be allowed because the purpose of the display is “educating the public on American legal traditions”. I like this ruling very much. I don’t believe any reasonable person can argue against the importance of the Judeo-Christian values of our founding fathers and the resulting significance on our laws and freedoms. Ignoring these would be an attempt at rewriting history for the sake of modern “Political Correctness”.
In a similar vein of concern is the controversy of crosses on public property. I live in Southern California and the crosses atop Mount Soledad, Mount Baldy and Mount Helix (all in San Diego County) have all come under fire. In May of 2006 a federal judge ruled that specifically the cross on Mount Soledad should be removed. I believe this to be an extreme attempt at political correctness (“PC”) over historical recognition. As any 4th grader can tell you, California was first settled by Catholic missionaries. Most of the major cities we now know were originally founded around Catholic missions. By leaving these monuments in place no one is being forced to go to Sunday mass. To my knowledge, no one is being ostracized if they are not Catholic. Catholicism holds a significant role in local history. I know that not all of this history is good, but most of it is at least well-intentioned if not significant in the development of the region. So who should be offended? I’m not a Christian and I find no offence in these symbols. I view them as historical in nature as opposed to evangelical. If you are atheists wouldn’t these crosses just be so much concrete and steel? So I again ask who should be offended or feel that their religious freedom is being violated?
So all of this controversy ultimately comes down to the three important questions.
a.) What is the "separation of church and state"?
b.) How far do you need to separate church and state to ensure personal freedom and avoid a nationally imposed religion?
c.) How should the Supreme Court interpret constitutional limitation on this question?
I firmly believe that the goal of separation is and should be to avoid having a state sponsored religion at the expense of other religions. This does not mean a session of Congress can’t begin with a benediction, it just means you don’t have to be a member of a particular religion to be in congress. It doesn’t mean you can’t have the Ten Commandments displayed in a courtroom; these are historical artifacts to the foundation of many of our laws and should be displayed as public reminders. It does mean our government should not be in the business of religion. It does mean we should not be segregating or punishing anyone based on their religion or lack of religion. It also means our government should not be sponsoring religious evangelism. Much of the greatness of our society comes from our willingness to tolerate each other’s differences while working together. When we lose that tolerance, we lose the greatness that comes with our special freedom, the melding of our diversity, and our tolerance of others.