Conflict Between the Ten Commandments and the Constitution and the People who Think the Two Can Be Appealed to for Public Policy
I'm supposed to be working on a paper but what I heard got me so worked up, I had to write something about it. NPR was broadcasting a debate between contestants in the Texas senatorial election. Every idiot ended their speech with the same idiotic claim, that they promise to uphold the Constitution and the 10 Commandments as the guiding documents for their policies. If these morons want to follow the 10 Commandments in their personal life, fine. But don't get up on the pulpit and say you're going to use it as guidance for your public policy decisions.
Reason #1 why they are idiots: If they actually read the gotdam Constitution they'd see right there in the 1st Amendment there is a prohibition against government enacting any law regarding the establishment of religion. By the rules of the Constitution they are prohibited from enacting many parts of the 10 Commandments.
Reason #2 why they are idiots: Just like 90% of "Christians" I've met, I'll bet they can't even name the 10 Commandments or even know that there were TWO lists of 10 Commandments given to Moses. So, lets look at some of the things they will appeal to for their policies:
1st Commandment: Thou shalt have no gods before me. You're going to make this public policy? How the fuck does this fit with the establishment clause? What about freedom to worship as people please? Idiots.
2nd Commandment: Thou shalt not make thee any graven images...blah blah blah. What the fuck. So are they going to make policies that ban art? What about freedom of expression? And if someone wants to worship a statue, that's protected by freedom of religious expression. Idiots.
3rd Commandment: Thou shalt not take the Lord's name in vain. Hello? Freedom of speech? Idiots.
4th Commandment: Keep the Sabbath--even your manservant and maid. Oh, so now all businesses have to shut down on Sunday? I'd like to see a Republican put forward an anti-commerce law. Idiots.
5th Commandment: Honor they father and mother. What the fuck are you going to do to people who don't? Send them to jail? What about people whose parents are cretins? Are people obligated to honor those who don't deserve it? Idiots.
6th Commandment: Thou shalt not kill. Oh! This one's good. Such wisdom does the bible have! No other society could ever have or ever has figured out this is a good rule. Idiots. Oh, and by the by, in the bible this statement is left unqualified. So, I guess that means you Texas Republicans will be repealing capital punishment. I look forward to seeing that legislation. Idiots.
7th Commandment: Thou shalt not commit adultery. Or what? What happened to your ideas of curtailing the powers of government. So, now government's going to get involved when people cheat on their partners? Is that what you're saying? Idiots. Oh, and what's the punishment going to be? Public stoning? Idiots.
8th Commandment: Thou shalt not steal. Once again, the wisdom of the bible overwhelms me. How deep and profound is this rule! Surely, no other tradition or society could have come up with a rule so sublime! There's already a rule against stealing, we don't need the bible for that. Idiots.
9th Commandment: Thou shalt not bear false witness. (See 6 and 8). Idiots.
10th Commandment: Thou shalt not covet thy neighbor's house, wife, ox, etc... I see, so you're going to be introducing thought crime. How? Make it a law that when I have thoughts about wanting my neighbor's ox, I go to jail? I'd like to see you enforce it. Idiots.
So, would someone please tell me how it is possible to simultaneously uphold both documents when creating public policy? Answer: you can't. So all you idiot politicians stop pandering to the Christian right. If you think the 10 Commandments are the more important, that's fine, go run for a committee at a church, but keep that crap out government if you value the Constitution (as you say you do).
What the conclusion? When these idiots say that their policies will be guided by the ten Commandments, they mean "I will violate the establishment clause and legislate my particular version of Christianity as the State religion". When they say their policies will be guided by the Constitution, they mean, "I will interpret the 2nd Amendment out of its context to allow easy access to guns". It's clear that's the only part they're ever read. Idiots.
Ok, I feel a bit better now.
Showing posts with label Establishment clause. Show all posts
Showing posts with label Establishment clause. Show all posts
Saturday, April 14, 2012
Tuesday, April 3, 2012
Separation of Church and State Part 2: The Establishment Clause and Accommodationist Position
Notes and Thoughts on the Legal Issues Surrounding the Separation of Church and State in the Context of the Establishment Clause
Overview
So, what's the establishment clause? It's the part of the first part of the first amendment that says "Congress shall make no law respecting the establishment of a religion". The free exercise clause follows it is, "[...] shall make no law impeding the free exercise of religion". The first clause is a guard against there being a state religions and the second forbids the gov't from obstructing people's ability to worship however and whomever they please. So, if someone wants to worship me the gov't can't stop them. Now I just need disciples. I'll be accepting applications.
History
Historically there are two basic reasons for the inclusion of the establishment clause: the first is political, the second is philosophical. Obviously, in reality the latter never would have been considered if not for the former. Enough jibber-jabber. Lets talk about the political reasons.
Prior to the 'mercan revolution the Church of England had been the national state religion. After the 'mercan revolution it was not. Pretty simple so far. But now in Virginia the Baptists held most of the political power. They realized that there were no protections in the Constitution against there being a national religion which they di'int want. Other religious groups realized this too, so basically as a safeguard against one religion taking over, the establishment clause was included.
Here comes the tricky part! Who needs the Quikee Mart? A couple of background points. First, is that up until the 14th Amendment was passed (extending the Bill of Rights, including 1st Amendment, to state laws), the Bill of Rights only applied to Federal laws. But part of the reason why the states had originally ratified the agreement in 178-whatever is because they didn't want federal interference in their state in the religious sphere.
So, it sounds like the signatories were against gov't intervention in religion. Not so. The reality was 6 of the states had official state religions. Ah! Now we see why they really signed. They di'int want their particular state religion to be banned or subjugated by a national religion.
In 1940 when the Supreme Court ruled that the 1st Amendment was included state-level laws, no one really had any issues with the "free exercise clause"--but the establishment clause was going to be a problem. Anytime people have to give up power and privilege there will always be resistance.
Two Arguments Against Extending the Establishment Clause to State Law
There are 2 main arguments against extending the scope of the establishment clause to state law. The first regards original intent. Recall that when the states originally ratified the constitution it was to protect their state religions and religious laws from federal interference. Apparently, in 1947 the Supreme Court acknowledges this fact (I need to read the opinions). Despite this acknowledgment, the court still ruled that the establishment clause extends to the state level (interesting).
The other argument involves individual rights. The argument is that the 14th amendment is only intended to extend the Bill of Rights to prohibitions on government interference with individual rights; that is, what were previously only restrictions on federal gov't laws vis a vis individual rights were now being extended to state laws. However, accommodationists contend that the establishment clause doesn't violate anyone's individual rights. It is not in the domain of individual rights, so it should be exempt from the extension of the Bill of Rights. Extending the establishment clause to state laws is an "unconstitutional" intrusion of the federal gov't into state sovereignty. And we all know how whipped up 'mericans can get when the big bad gov't extends it's powers in any way, shape, or form, including triangles. In 'merica, gov't is always baaaaaaaaaaaaad; especially the federal gov't (except when it provides the services that are required for a modern civilized nation...but lets ignore that).
Interesting. So, it looks like the accommodationists have some technical arguments...but do they have philosophical arguments? I'll keep looking...it'll make a better paper when I crush them!
Overview
So, what's the establishment clause? It's the part of the first part of the first amendment that says "Congress shall make no law respecting the establishment of a religion". The free exercise clause follows it is, "[...] shall make no law impeding the free exercise of religion". The first clause is a guard against there being a state religions and the second forbids the gov't from obstructing people's ability to worship however and whomever they please. So, if someone wants to worship me the gov't can't stop them. Now I just need disciples. I'll be accepting applications.
History
Historically there are two basic reasons for the inclusion of the establishment clause: the first is political, the second is philosophical. Obviously, in reality the latter never would have been considered if not for the former. Enough jibber-jabber. Lets talk about the political reasons.
Prior to the 'mercan revolution the Church of England had been the national state religion. After the 'mercan revolution it was not. Pretty simple so far. But now in Virginia the Baptists held most of the political power. They realized that there were no protections in the Constitution against there being a national religion which they di'int want. Other religious groups realized this too, so basically as a safeguard against one religion taking over, the establishment clause was included.
Here comes the tricky part! Who needs the Quikee Mart? A couple of background points. First, is that up until the 14th Amendment was passed (extending the Bill of Rights, including 1st Amendment, to state laws), the Bill of Rights only applied to Federal laws. But part of the reason why the states had originally ratified the agreement in 178-whatever is because they didn't want federal interference in their state in the religious sphere.
So, it sounds like the signatories were against gov't intervention in religion. Not so. The reality was 6 of the states had official state religions. Ah! Now we see why they really signed. They di'int want their particular state religion to be banned or subjugated by a national religion.
In 1940 when the Supreme Court ruled that the 1st Amendment was included state-level laws, no one really had any issues with the "free exercise clause"--but the establishment clause was going to be a problem. Anytime people have to give up power and privilege there will always be resistance.
Two Arguments Against Extending the Establishment Clause to State Law
There are 2 main arguments against extending the scope of the establishment clause to state law. The first regards original intent. Recall that when the states originally ratified the constitution it was to protect their state religions and religious laws from federal interference. Apparently, in 1947 the Supreme Court acknowledges this fact (I need to read the opinions). Despite this acknowledgment, the court still ruled that the establishment clause extends to the state level (interesting).
The other argument involves individual rights. The argument is that the 14th amendment is only intended to extend the Bill of Rights to prohibitions on government interference with individual rights; that is, what were previously only restrictions on federal gov't laws vis a vis individual rights were now being extended to state laws. However, accommodationists contend that the establishment clause doesn't violate anyone's individual rights. It is not in the domain of individual rights, so it should be exempt from the extension of the Bill of Rights. Extending the establishment clause to state laws is an "unconstitutional" intrusion of the federal gov't into state sovereignty. And we all know how whipped up 'mericans can get when the big bad gov't extends it's powers in any way, shape, or form, including triangles. In 'merica, gov't is always baaaaaaaaaaaaad; especially the federal gov't (except when it provides the services that are required for a modern civilized nation...but lets ignore that).
Interesting. So, it looks like the accommodationists have some technical arguments...but do they have philosophical arguments? I'll keep looking...it'll make a better paper when I crush them!
Saturday, March 31, 2012
Separation of Church and State: The Lemon Test
Pre-amble
As I mentioned in my previous entry, most of my posts from now until the end of the semester will be me (who else?) contemplating and trying out ideas for essays. Basically, I'm apologizing in advance for what might end up as "rambling". For my philosophy of law paper I'm thinking of doing something about interpretation of the 1st Amendment clause concerning establishment of religion. Originally, I thought I'd focus on this issue in relation to attempts to get creationism into the science curriculum but I fear that the content will be too heavily weighted towards legal interpretation rather than philosophical analysis. Anyhow, I'm thinking about looking at the philosophical issues surrounding why the establishment clause was originally written into the Bill of Rights, the different ways it is interpreted, and the philosophical implications of each interpretation, and which interpretation best accomplishes the philosophical aims of the clause.
Also something went crazy with the layout so I apologize for that.
Intro the First Amendment Regarding Establishment of Religion
The First Amendment (in the context of religion) is often referred to as the establishment clause because it prohibits Congress congress from making any law respecting the establishment of any religion and impeding free exercise of religion. (Note, it has been extended to laws at the state level since 1925).
Before we put on our philosopher beards, lets look at the actual law:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof (then some
shit about free speech, freedom of the press, assembly,
blah, blah, blah).
So, what's the point of the law? It seems it's to make it so
government neither promotes one religion over another or
interferes in anyone's ability to practix their religion of choice, and
maybe to secure freedom from being coerced into a particular
religion.
The clauses work together in that if government were to enact
policy that gave preference to one religion (or branch of a
religion), it would be a hop, skip, and a jump away from
interfering others' ability to practix their own religion.
Conversely, by interfering in someone's/some group's ability to
practix religion, they'd be tacitly endorsing others.
There are lots of instances where the manner in which this law
should be applied is pretty clear, and we never hear about those
because they never make it to court. There are however other
instances where it's not so clear how or if the establishment clause
applies.
Two Interpretations
There are 2 basic interpretations of the law: the separationist and
the accommodationist. Obviously, the separationist view is that
there should be a strict separation of Church and State. The
modern separationist interpretation (the standard one) was first
invoked in 1971 in Lemon v. Kurtzman. In this case private
religious-based schools were axing for money to supplement
teachers' salaries who taught secular content. Out of this case
arose what is called the Lemon test. The purpose of the test is to
determine whether a proposed piece of legislation constitutes the
establishment of religion, thereby violating the establishment
clause.
The Lemon Test
Here it is--check it!
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster "an excessive government entanglement with religion."
Regarding the first section, it is noted that a law can also have
religious motivations and still be constitutional, but it's primary
purpose must be secular. The second section is self-explanatory.
The third has faced the most criticism and has been interpreted
various ways.
One interpretation of the third part is that it is only the effects of
the proposed law that cannot bring about Church-State
entanglement. For example, most "Church" charities are actually
largely funded by the government. Because government doesn't
administrate or regulate the charities (possible problem?) these
types of policies have not been interpreted as "excessively"
entangling gov't with religion.
Another consideration in interpreting the third section of the
Lemon test is the purpose of the law. Hospitals and universities
are institutions considered to have secular purposes, for this
reason, a law which approves funding to such institutions even if
they have religious affiliations can be (and has been) considered
permissible.
Accommodationists
One can make the argument that accommodationists are "less
concerned about the dangers of establishment and less concerned
to protect free exercise rights, particularly of religious minorities."
Basically, as I mentioned before, if you give an advantage to one
religious group it is very easy for smaller groups to be prejudiced
against and not be able to compete for souls on a level playing
field. Er'body knows that whatever religion ends up with the most
souls wins. It's unfair for gov't to help one team while not helping
others.
The accommodationist position is best summarized by the opinion
of Justice Douglas in Zorach v. Clauson: "Accommodationists read
the establishment clause as prohibiting Congress from declaring a
national religion or preferring one to another, but laws do not have
to be shorn of morality and history to be declared constitutional".
They apply Lemon only selectively because "[w]e are a religious
people whose institutions presuppose a Supreme Being".
Oy! Where to begin! For my paper I'm going to attack the clause
"do not have to be shorn of morality and history" because a) the
(absurd) implication is that the is no morality without religion (or
that our moral values are derived from religion) and b) that this is
what the writers of the constitution intended and/or that this
interpretation is implied by the historical circumstances at the time
of the writing. It seems Justice Douglas is taking liberties with his
psycho-analysis of James Madison.
Obviously, the claim that the US gov't institutions presuppose a
Supreme Being is also pretty loony. Suppose it is true. What does
that tell us about our sexual preference? Exactly, it's irrelevant.
Someone please tell me how the existence or non-existence of a
Supreme being is relevant to EPA legislation.
Arguments for Interpretation
I should add that the separationists, to support their position,
appeal to one of Jefferson's letters in which he uses the phrase and
advocates the view of "separation of church and state". Also in
1879 Chief Justice Waite consulted with historian G. Bancroft to
discuss Madison's (author of the 1st Amendment) "Memorial and
Remonstrance against Religious Assessments". In that petition
Madison proposes there should be "a great barrier" between
Church and State.
This brings up the issue of how interpretation is done in
constitutional law: do you strictly interpret the letter of the law in
the way it would have been understood in its era? Or do you make
allowances with the understanding that what made sense in one era
might not now, and that law-makers can't foresee all future
circumstances.
Maybe you argue for interpretation based on intent, but how do
you know the authors intent? Do you have a time-travel machine
and a mind reading machine? It is almost certain that our own
biases will be read into how we "interpret" the intent of a
lawmaker.
Anyway, I think this is a productive start. I think I'll go though
some of the major trials and read judges opinions and go from
there. I welcome any comments or suggestions. Thanks for
putting up for the scattered writing...
G'nite!
By the by, if you're interested in reading G. Madison's "Memorial
and Remonstrance against Religious Assessments" here's the link
(it's not very long):
http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html
As I mentioned in my previous entry, most of my posts from now until the end of the semester will be me (who else?) contemplating and trying out ideas for essays. Basically, I'm apologizing in advance for what might end up as "rambling". For my philosophy of law paper I'm thinking of doing something about interpretation of the 1st Amendment clause concerning establishment of religion. Originally, I thought I'd focus on this issue in relation to attempts to get creationism into the science curriculum but I fear that the content will be too heavily weighted towards legal interpretation rather than philosophical analysis. Anyhow, I'm thinking about looking at the philosophical issues surrounding why the establishment clause was originally written into the Bill of Rights, the different ways it is interpreted, and the philosophical implications of each interpretation, and which interpretation best accomplishes the philosophical aims of the clause.
Also something went crazy with the layout so I apologize for that.
Intro the First Amendment Regarding Establishment of Religion
The First Amendment (in the context of religion) is often referred to as the establishment clause because it prohibits Congress congress from making any law respecting the establishment of any religion and impeding free exercise of religion. (Note, it has been extended to laws at the state level since 1925).
Before we put on our philosopher beards, lets look at the actual law:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof (then some
shit about free speech, freedom of the press, assembly,
blah, blah, blah).
So, what's the point of the law? It seems it's to make it so
government neither promotes one religion over another or
interferes in anyone's ability to practix their religion of choice, and
maybe to secure freedom from being coerced into a particular
religion.
The clauses work together in that if government were to enact
policy that gave preference to one religion (or branch of a
religion), it would be a hop, skip, and a jump away from
interfering others' ability to practix their own religion.
Conversely, by interfering in someone's/some group's ability to
practix religion, they'd be tacitly endorsing others.
There are lots of instances where the manner in which this law
should be applied is pretty clear, and we never hear about those
because they never make it to court. There are however other
instances where it's not so clear how or if the establishment clause
applies.
Two Interpretations
There are 2 basic interpretations of the law: the separationist and
the accommodationist. Obviously, the separationist view is that
there should be a strict separation of Church and State. The
modern separationist interpretation (the standard one) was first
invoked in 1971 in Lemon v. Kurtzman. In this case private
religious-based schools were axing for money to supplement
teachers' salaries who taught secular content. Out of this case
arose what is called the Lemon test. The purpose of the test is to
determine whether a proposed piece of legislation constitutes the
establishment of religion, thereby violating the establishment
clause.
The Lemon Test
Here it is--check it!
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster "an excessive government entanglement with religion."
Regarding the first section, it is noted that a law can also have
religious motivations and still be constitutional, but it's primary
purpose must be secular. The second section is self-explanatory.
The third has faced the most criticism and has been interpreted
various ways.
One interpretation of the third part is that it is only the effects of
the proposed law that cannot bring about Church-State
entanglement. For example, most "Church" charities are actually
largely funded by the government. Because government doesn't
administrate or regulate the charities (possible problem?) these
types of policies have not been interpreted as "excessively"
entangling gov't with religion.
Another consideration in interpreting the third section of the
Lemon test is the purpose of the law. Hospitals and universities
are institutions considered to have secular purposes, for this
reason, a law which approves funding to such institutions even if
they have religious affiliations can be (and has been) considered
permissible.
Accommodationists
One can make the argument that accommodationists are "less
concerned about the dangers of establishment and less concerned
to protect free exercise rights, particularly of religious minorities."
Basically, as I mentioned before, if you give an advantage to one
religious group it is very easy for smaller groups to be prejudiced
against and not be able to compete for souls on a level playing
field. Er'body knows that whatever religion ends up with the most
souls wins. It's unfair for gov't to help one team while not helping
others.
The accommodationist position is best summarized by the opinion
of Justice Douglas in Zorach v. Clauson: "Accommodationists read
the establishment clause as prohibiting Congress from declaring a
national religion or preferring one to another, but laws do not have
to be shorn of morality and history to be declared constitutional".
They apply Lemon only selectively because "[w]e are a religious
people whose institutions presuppose a Supreme Being".
Oy! Where to begin! For my paper I'm going to attack the clause
"do not have to be shorn of morality and history" because a) the
(absurd) implication is that the is no morality without religion (or
that our moral values are derived from religion) and b) that this is
what the writers of the constitution intended and/or that this
interpretation is implied by the historical circumstances at the time
of the writing. It seems Justice Douglas is taking liberties with his
psycho-analysis of James Madison.
Obviously, the claim that the US gov't institutions presuppose a
Supreme Being is also pretty loony. Suppose it is true. What does
that tell us about our sexual preference? Exactly, it's irrelevant.
Someone please tell me how the existence or non-existence of a
Supreme being is relevant to EPA legislation.
Arguments for Interpretation
I should add that the separationists, to support their position,
appeal to one of Jefferson's letters in which he uses the phrase and
advocates the view of "separation of church and state". Also in
1879 Chief Justice Waite consulted with historian G. Bancroft to
discuss Madison's (author of the 1st Amendment) "Memorial and
Remonstrance against Religious Assessments". In that petition
Madison proposes there should be "a great barrier" between
Church and State.
This brings up the issue of how interpretation is done in
constitutional law: do you strictly interpret the letter of the law in
the way it would have been understood in its era? Or do you make
allowances with the understanding that what made sense in one era
might not now, and that law-makers can't foresee all future
circumstances.
Maybe you argue for interpretation based on intent, but how do
you know the authors intent? Do you have a time-travel machine
and a mind reading machine? It is almost certain that our own
biases will be read into how we "interpret" the intent of a
lawmaker.
Anyway, I think this is a productive start. I think I'll go though
some of the major trials and read judges opinions and go from
there. I welcome any comments or suggestions. Thanks for
putting up for the scattered writing...
G'nite!
By the by, if you're interested in reading G. Madison's "Memorial
and Remonstrance against Religious Assessments" here's the link
(it's not very long):
http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html
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