T Nation

Church/State Separation


#1

Interesting post from Jim Lindgren, a law professor at Northwestern, on the history of the separation of church and state as a concept that's been read into the 1st Amendment, and his opinion on the "under God" phase in the Pledge of Allegiance:

http://volokh.com/archives/archive_2005_09_11-2005_09_17.shtml#1126793989

Pledging Allegiance to the "Eternal Separation of Church and State."--

After reading some of the online comments on the Pledge of Allegiance case this week, I offer some casual thoughts on the words "under God" in the Pledge. I am not analyzing recent Court jurisprudence, and am addressing only the establishment clause issue (which is how Newdow was previously presented to the Supreme Court), not any free exercise or free speech claims:

  1. Although I am a fervent atheist, I wouldn't call my belief a religion.

  2. The words "under God" have no business being in the Pledge of Allegiance, no matter how religious the country currently is or was.

  3. I wish that the Senate didn't have a chaplain, but this has been held constitutional, as have military chaplains.

  4. If the Supreme Court were not so confused, the Pledge of Allegiance case would be an easy one on establishment grounds. First, it does not involve a statute of Congress respecting the establishment of a state religion. Second, even if one were to extend this part of the first amendment to the state of California?s statutes, still California has not enacted a state religion, nor has it passed a statute respecting the establishment of religion.

  5. One shouldn't confuse what should or shouldn't be in the Pledge with the question whether mandating the Pledge enacts a state religion. It obviously doesn't. Therefore, the establishment clause should not prohibit the words "under God" in the pledge. Again, this is not an analysis of how the Court usually approaches establishment clause cases.

  6. The phrase "Separation of Church and State," as Philip Hamburger establishes in his classic book on the subject ( http://www.hup.harvard.edu/catalog/HAMSEP.html ), is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

  7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

  8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

  9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

  10. Separation was a crucial part of the KKK?s jurisprudential agenda. It was included in the Klansman's Creed (or was it the Klansman's Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the "eternal separation of Church and State." In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment?s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

  11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

  12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.


#2


#3

BB was reposting Lindgren's post for our benefit, not stating his own position. Don't you know him better than that, by now? :wink:

I'll briefly point out that there can be objective right and wrong without need for a god of revelation; and this isn't a sufficient justification for faith. I'm not knocking you, of course, just pointing out that there is an alternative.

BB: Interesting perspective from Lindgren. I may need to change my subfield to Constitutional Law... decisions, decisions.


#4

Judge Richard Posner said it best: practically all cases involving religion deal with religions symbols rather than actual practices. Lots of energy expended by both sides over what amounts to nothing. Does posting the Ten Commandments in public buildings establish a religion? No, it really doesn't. Does prohibiting the posting of the Ten Commandments in public buildings prevent people from practicing a religion? Again, the answer is no; people can practice all they want in a church of their choosing.


#5

Interesting that he mentions the KKK. I had thought that the KKK was motivated in part by the misguided view that Christianity favored the white race over the other races. I don't know for sure which is why I'm asking.


#6

It is "freedom of religion" recently it has been interpreted as "freedom from religion". Huge difference


#7

Even we assume that laws should be based on Christian principles, there is considerable disagreement among Christian's as to what those principles are. For instance, some Christians believe that homosexuals should be treated with compassion while others believe they should be thrown in jail for their sinful behavior. Which idea should form the basis of our law?

Actually, it was the free market system, a system arguably based on "greed," that made this country great. As Gordon Gekko said, "greed is good." To a certain extent, he was right.


#8

Mike,

As far as I know, the KKK was behind a lot of what were technically seen as anti-Catholic movements -- they saw a lot of immigrants from Catholic countries (e.g. Italy, Ireland) and didn't want those "inferior races" (a perception misguided in several different ways, really) to gain a foothold for their well organized religion within the governments. Just look at all the state constitutions that anti-catholic amendments that were added to them at around that same time.


#9

BB - Thanks for the clarification.

Here's a question for the group: pretend you could re-write the First Amendment (on a side note, I think that drafting a whole new Constitution has some merit). How would you draft the Establishment and Free Exercise clauses? Be specific and don't assume that future generations will correctly interpret what you write. For instance, if you think religious symbols should be allowed on public buildings, put that in there. You may also want to specify who decides what symbols can or should be placed on public buildings.


#10

I think that the basis of American morality is the ten commandments. I think that your morals are based on those laws weather you are realize that or not. I understand the Libertarian point of view that your coming from, I hope that people with your agenda to remove God from American culture fails. Without a standard of right and wrong human nature is a distructive force that eventually destroys it self. Your train of thought ends at a place where there is no evil, there is no good, all is a matter of individual interpretaion. Common cense would recognise that Jeffrey Damer was evil or a least his actions were but with your phylosophy Damer was right for Damer, no what he did was wrong because it was wrong based on the God given moral law. Too many chiefs and not enough indians leads to confusion, if everyone lived life the way they though served them this world would be even more screwed up than it is already. This issue is at the heart of the battle between good and evil. If we as a nation take God out of our courts, out of our legislation evil has one. When we fail to recognise something greater than ourselves a greater good that we must live by this nation will fall. The former Soviet Union was a perfect example of a country that took God and morality from their goverment and they fell, on their way down millions of oppressed people lost their lives and were inprisoned, were tortoured and oppressed. They were taught that their fellow man was a mere animal and that there is no God and there is no punishment for the wicked, thats were your idealistic atheist beliefs would eventually take use. Once you remove the holiness of God and the holiness of his creation man loses his value and can be destroyed without any lack of remorse, no thankx. I'll keep believong in God, in Love, in the belief that God so loved the world that he gave his only begotten son, that whoever believes in him shall not perish but have everlasting life.


#11

My morals may be in agreement with the ten commandments without being based on them.

Obviously you do NOT understand the point of view I'm coming from... Libertarian or otherwise. I never said I had an agenda to remove God from American culture. I have never advocated such a thing.

We agree, here.

No, my "train of thought" does NOT lead to relativism. If you had carefully read what I wrote, I said that there CAN be objective (I mistyped and put "object") right and wrong. I did NOT say that there can NOT be objective right or wrong, or say that right and wrong are subjective. You are misrepresenting me most grievously.

I never said that. It's an untenable position, and "my philosophy" would never hold such an absurdity.

Technically speaking, we cannot "take God out" of anything. Do you think that the ten commandments are good only because God says so, or are they good because they benefit human beings the most? Think carefully about your answer.

It is important for the many to believe that there is a reckoning after death. I am not an atheist, and I defy you to show how I am.

Please do.


#12

I'm sorry if I jumped to alot of assumtions about your line of thinking. I'll reread what you said more closely. I'll try to get back to you later on this evening, I work night shift.
Later


#13

ever heard of using paragraphs?


#14

This is highly based on personal opinion but has anybody noticed that all of the reputable countries out there ( europe , japan, well china is gettingt there too ) have a real separation of church & state?

Once you add religion to state it politicses religion which is not a good thing to do. Thats why we had people coming to america in the first place so we could practice religion as we want ( without government interference) putting a religous neutral language in offical documents is just an extension of this as is putting gender and race-neutral language in business documents an attempt at promoting equality with male and female all genders.
I guess i could also give the example of the islamo facists that have considerably melded government and religion and even though putting the 10 comandments up in aschool or a courthouse is a far cry from that, some people do feel that a certain religous viewpoint is being made dominant. I wouldnt want to haveto send my future kids to a private school because the teachers want to teach them to be muslims or sihks?


#15

You all know I am a diehard liberal, and support the seperation altogether. However, I do believe that saying, "Under God" in the pledge of allegiance is a truly American thing.

There are simply not enough people who believe in this to say it is wrong to have it make a difference. I do believe there is a God, and I do believe he has something to do with the course the country takes. Saying we should all live by the extremely Christian "Ten Commandments" is much different than simply saying "Under God". The said "God" can be any god, any where. It could mean "Under Zeus" or "Under Juno", or "Under Allah". How can you argue with a term that leaves such openess?

If it said, "We believe in a strictly Judeo-Christian God who hates everyone else" I would have an objection. But to hate the saying "under God" is simply wrong.

To believe there is no God is irrational, I think. To make irrationality part of the national concioussness is even worse.


#16

Actually, to believe in the supernatural (like a christian God, for example) is to be irrational. Look it up.

Still, even though my atheism is strong in me, I can't see what the big fuss is about. "Under God" is a part of our history and a tradition. The whole point of saying the Pledge of Allegiance is to pay respects to our traditions, isn't it? So we are going to change our traditional thing because why?

There isn't a good reason to. No atheist will have his rights denied if he says "Under God" once or twice. I see it as a metaphorical reference to our national humility (if there is any left), and what better way to say that than to declare that you are not almighty?

I find myself saying "lighten up" to religious folks sometimes, and I think it's our turn now as atheists to do the same. Lighten up anti-"Under God" people, you are being assholes here.


#17

I should have directed my response to the atheist point of view and not to you.
In response to beliveing in right and wrong outside of a belief in the God of the bible or no God at all. Sure you can agree with the tenents of the ten commandments without beliving that the God of the bible is real. God laid down those laws not because he was just wanting to impose control on the human race, he laid down the law to protect us from the wages of sin. Just as a parent tells their children not to eat to much candy or play in the street. At some time the child rebels and questions the validity of the law and questions the wisdom of the parent beliving that he the child knows best.
Take care


#18

I don't see anything in the ten commandments that requires divine wisdom. If you remove those concerned about how important it is to worship, you're left with: Don't kill, don't steal, don't lie, don't sleep around on your wife and honor your mum and dad. I somehow don't find any of those to be mind-bogglingly hard to come up with. If you go by the 10 commandments, then slavery is quite alright. So is beating your child (just don't kill him). Harassment? No problem. You could even push it and say that rape and pedophilia are permitted, as adultery is only a possibility if you're married.

You really think that men can't come up with a (better) set of ethical rule without it being based on the Bible? Have a look at this: http://www.un.org/Overview/rights.html It takes 30 Articles and a preamble, but it covers all the bases.


#19

Considering laws like the PATRIOT ACT, the DMCA and UCITA; increases in police powers; detention without counsel or right to a trial; the near ubiquitous presence of closed-circuit TVs in public places; the soon to be required "National ID Card" and similar initiatives, maybe "one nation under God" should be replaced with "one nation under surveillance."


#20

I am a diehard conservative and agree with you.

No need to throw out tradition for political correctness.

Nobody makes anyone say the pledge and if you don't like the under God part, you can always excercise your freedom to remain silent when it gets to that part.