Church and State

Jon Stewart interviews David Barton about church/State

This was a fascinating interview. Stewart is a smart guy, and he is typically very fair minded, so I was surprised at how much he insisted on towing the line his writers prefabbed for him. He struck me as so invested that he had a hard time coming to the sharp edge of the issues and formulating really good questions. His dismissal of “anecdote here, anecdote there” was incredibly frustrating, because those anecdotes were either historical examples or ongoing court cases that are the only way to substantiate an argument. It’s like Barton said X, Stewart said, “How can you say X?” Barton said, “Let me give you an example that demonstrates X,” and Stewart replied, “You’re just giving me examples.” Yes. That’s how case law is done (so I hear).

I was planning to begin working through the tensions in my thoughts on religion and government, and now is as good a time as any.

We can’t look at “just the Constitution” in this discussion, because it has to be interpreted like every other document, and context determines meaning. We may be willing to move beyond the authors’ intent given nearly two and a half centuries of experience, but let’s not expect to have a real conversation about “what it says” without reference to other historical information.

The Constitution is worded intentionally. I haven’t read them myself, but my political science professor asserted that if one reads the minutes of the constitutional convention, it is clear that the language about religion was made intentionally neutral through a long process of revision. This can be read two ways. One might say that those minutes are evidence of the framer’s assumptions and preferences—they were clearly intending a Christian nation, even though they chose not to be heavy handed with the language of the founding document. I tend to think the more important point is that the Enlightenment won through that revision process. Despite the fact that many (maybe nearly all) in the room probably did intend a Christian nation in a substantive sense—how could they have imagined anything else from within their worldview?—the language ended up where it did specifically in order to humanize and generalize to the extent possible. There were limits, as references to God indicate, for quite logically, to have gone all the way would have been to cut out theism completely. They did not; likely could not. Yet, we may note the trajectory is there, and that is significant for interpretation.

There is a huge difference between making a historical observation about the intentions of the founders and agreeing with them. There is also a huge difference between agreeing with them and acting to codify those intentions legally in way the founders didn’t need to and/or chose not to. Part of what muddies the conversation is that if a person is known to agree with the founders’ intentions to form a Christian nation, they are automatically suspect as having an agenda to act to codify those intentions, and if they make historical observations they are implicitly discredited as biased and skewed. That is absurd, and it’s what kills real, productive discussion.

The basic impulse of the First Amendment is to protect rights and freedoms. This means that, in regard to certain matters, the majority rule does not matter; the minority is protected. What those certain matters are is very important, because other matters are determined by majority rule, to the extent that the legislative process actually represents the majority. That is what “making law” is about, and that is why it is important that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” When it comes to the diversity of religion conceivable to the framers, then, the point was to refuse to take sides. They would not favor one (Establishment Clause) or pick on one (Free Exercise Clause). This doesn’t mean there weren’t assumptions about the limits of conceivable diversity or influence (the very ability to make amendments to the Constitution is a tacit admission by the framers that there were things they weren’t saying at the moment that might need saying later; they knew they couldn’t see beyond their own assumptions and situations). And it doesn’t mean that a given law might not conflict with the practices or beliefs of a religion. It just means that the federal government can’t make laws for the purpose of playing religious favorites. This is Jefferson’s “wall of separation.”

The Constitution does not speak to the influence of elected officials’ convictions upon legislation outside of the establishment or prohibition of religion—or mere voters’ for that matter. And this is where the rubber meets the road, because as a citizen an official is granted the same freedom to practice whatever religion—values, ethics, and all—and there is no wall that can separate that from their governance. And this is why the founders’ assumptions are so important; everyone sitting in the room was at least a Christian deist. Even Jefferson, with his famous chopped up New Testament, got his moral compass from an essentially Judeo-Christian worldview. Everyone gets their values from somewhere. No one can check this at the door. And we have nothing in the Constitution that requires it even if it were possible. So, just as voters vote their conscience—and they should—elected officials must govern by conscience. No reasonable person expects a voter, in order to participate in the political process, to divest herself of her worldview and become a secular humanist. (Besides, the idea that secular humanism is somehow neutral and areligious is simply wrong to begin with.) Likewise, there is no reason to expect a given official to divest herself of her worldview in order to participate in the process on another level. It’s impossible and it’s clearly unreasonable. And the possession of a particular worldview by an official obviously does not constitute “establishment.” It creates fear in those with a different worldview; it may be perceived in a dangerous step in that direction if the Constitution is assumed to be inadequate for maintaining the wall of separation; but it must always be a step in some direction, since no official is a blank slate.

The sharp point of this conversation is whether my rights can be violated by someone else’s freedoms. Some feel that one group’s freedom to exercise religion—because the Constitution will not allow law forbidding it qua religion—infringes up on their right not to be socially “coerced” by that group. We must keep context in mind. The Constitution remains religiously neutral on the federal level in order to protect rights on the individual and minority group level, not just to pass the buck and allow state and local government to be the establishmentarians. The ambiguity is (1) whether the point is to protect individuals and minorities from social coercion or from something more concrete like persecution (damages) and injustice (lack of equal opportunity and resources where law and subsidy is concerned) and (2) whether it is even possible to legislate against social influence dynamics—because if it is truly a right not to be coerced by those around us, then we must legislate against it in principle, not just in schools or other state-funded settings. Because I believe the Constitution is interested in safeguarding against persecution and injustice, it seems to me that talking about coercion is to frame the problem wrongly. Rather, the problem is that state and local governments, in deciding how to use federal funding—and, in principle, how to use state and local funding in a constitutional way—can create real injustice if their advocacy or even permissiveness is viewed as a resource granted. Thus, if a local school is 90% Hasidic Jewish and decides by vote to institute Hasidic practices in the school (but not requiring the 10% to comply), the problem is still the advocacy of a particular religion within a government institution. The same is true if it’s a 51% vote, and the same is true if it’s a 100% vote and no minority is actually marginalized. Because in any case, the message is “be a majority and you too can have a government-funded religious education.” That is the spirit of what disestablishmentarianism is about preventing.

But what about the teacher’s right? Does the “spirit” of the Establishment Clause (because we’re patently not talking about “making law” but rather considering the intention of the Clause in order to interpret) overrule the explicit statement of the Free Exercise Clause where a government employee is concerned? Can a teacher as a teacher even mention her beliefs? Or can a principal hold a prayer breakfast once a year? The President does, and apparently that isn’t considered unfair advocacy of Christianity or faith over, say, Buddhism or atheism. It certainly doesn’t infringe anyone else’s rights or constitute coercion, even though that is the usual argument of disestablishmentarians. No, the issue must be whether an official as an official practicing a religion is in some way using the weight of office to show preference to one belief system other another. And even if so, a narrow interpretation of the First Amendment must conclude that this is only a problem if a relevant law is passed.

Because the First Amendment is not about the erasure of religion but rather the equality of religion, the logical answer to the problem of inequity is equal representation of all religions—as the IRS does with tax exemption, for example. Since that is practically impossible in many circumstances (not least public schools), the logical answer is equal non-representation. The real bind comes here, because to be areligious is in fact to advocate a particular religious belief system. The philosophical question behind the conversation comes in at this point: must an ideology remain non-religious in order to avoid the immanent threat of tyranny? Many postmoderns seem to believe that America was intended to be a totally relativist society and that religion is contradictory to that vision. The expectation is that there are universal ethical and moral norms accessible to all humanity apart from religious constructs, which is a basis for our legal code that is not tainted with the narrowness of religious zealotry. Here the point people like David Barton are trying to make is very important, because as a matter of historical fact, that is not the basis for our society. At the very least we have to talk about Enlightenment deism as the basis for our social mores, and Barton is right to talk far more broadly about the cultural influence of the Judeo-Christian worldview. The takeaway is that the truly secular society, where just being reasonable and nice leads to liberty and justice for all, is as much a religious myth as anything else, and it is a late invention where American politics is concerned. There is no pristine, objective, relativist system into which religious zealots are trying to inject their agenda. Rather, the more fair-minded advocates of a “Christian nation” are saying, in so many words, “If it was good to work off of points A, B, and C of our belief system, why not D, E, and F?” There may be good reasons, depending on what D, E, and F are, but it’s worth noting that the premise is fair.

On the other hand, returning to that humanist trajectory mentioned earlier, the Bill of Rights is about Locke’s idea of natural, inherent rights, so we are intended to work on the level of an ethics perceivable just by virtue of being human. Consider the Declaration of Independence: “We hold these truths to be self-evident” and “unalienable Rights.” This is what America is on about at root. Moreover, given the fact that biblical Christianity is patently non-coercive, Christians too are compelled in the direction of a social order that operates on a universally acceptable basis rather than an imposed faith basis. For this, we have a great deal of direction in both creation theology (which is where the founders tended to stay) and the Wisdom literature. Another way of saying this is that A, B, and C were both Judeo-Christian and perceived to be self-evidently right. At this point it is clear that epistemology is a major issue, as we must have debates about what is self-evident—and perhaps the majority will have its way. So, I reiterate, what is codified as a right regardless of majority vote is very important, because the codification predetermines for us the boundaries of the discussion about epistemology. That is the document’s essential function for those who acquiesce to it.

I will deal with specific issues next in order to flesh out these tensions.

Church and State

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