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Fritz Feds

Thursday, August 28, 2003



The phantom separation clause of the First Amendment The editorial board of the Strib predictably weighs in on the Ten Commandments debate, and predictably stubs their toe on the Constitution and basic American history.

After quoting some defenders of the Ten Commandments monument, the board begins to opine:

[Rev. Rob] Schenck and [Justice Roy] Moore and [Rev. Patrick] Mahoney are playing the Christian victimization card, the litany from the Christian right which whines that they are being persecuted, that the formerly Christian United States is becoming godless. They're wrong on many counts, and display an appalling misperception of American history. Religious liberty was never greater than it is in the United States today -- precisely because the courts so closely protect the concept of separation of church and state against even modest affronts, like displaying the Ten Commandments in the Alabama courthouse.

I think it's pretty clear that it is in fact the Star Tribune editorial board with an appalling misperception of American history, if they think that America was not widely considered a Christian nation. And when they say that "[r]eligious liberty was never greater than it is in the United States today" they actually mean a doctrine of total secularism which would prefer that there were no religious discourse in public life, even if it is something as admittedly "modest" as a display of the Ten Commandments in a courthouse. The concept of "separation of church and state" that the Star Tribune editorial board celebrates is not religious freedom in any meaningful sense, as it specifically privileges non-religious views over religious ones.

Then, as all bad arguments must do, a straw argument is constructed and blown over:

Surely they would not like to return to colonial Virginia, for example, where the Anglican church was the state church, people could be sentenced to death for blasphemy and Baptists, especially, suffered persecution. Nor would they like colonial Massachusetts, where Puritans controlled the government. They most likely wouldn't even appreciate present-day Germany, where citizens are still taxed by the government to provide financial support for churches.

Yes, colonial Virginia and colonial Massachussetts may have had some religious liberty problems. Interesting. However, as the term "colonial" suggests, this was before the American Revolution, and hence before things like state Bills of Rights, which many states had before the 14th Amendment was passed and before the Supreme Court decided without explanation to interpret to apply the establishment clause of the First Amendment to the states. I think Schenk, Moore, and Mahoney would probably all be just fine if the current state constitutional provisions on religion were enforced, instead of inexplicably applying the establishment clause to the states. (For a better discussion of why incorporating the establishment clause into the 14th Amendment doesn't make any sense and can only be based on what the Star Tribune calls an "appalling misperception of history," read Justice Thomas' concurring opinion in Zelman).

As for the Germany example, nobody is seriously defending using tax money to subsidize a specific denomination, and the utter absence of political support for this policy hardly makes it worth discussing, even if it were hypothetically Constitutionally permissible, under the arguments Justice Moore is making. If the federal government were doing it, that would probably violate the establishment clause, and if a state were doing it, it would probably violate the state's constitution.

Then, my favorite part:

No, Christians have it pretty good in the United States today, and they have the separation clause of the First Amendment to thank.

They have the what to thank? Sometimes I jokingly refer to the separation of church and state clause because I assume that anyone with a basic knowledge of the Constitution understands that there is no such clause. Sadly, I don't think the Star Tribune editorial board was joking. And who are they accusing of "appalling misperception[s]"?

Then the Star Tribune continues with their revisionism:

Many Americans believe that the United States is a Christian or Judeo-Christian nation. They are mistaken. Most Americans are Christian and the Judeo-Christian ethic has significantly influenced American values. But this country is not a Christian state, a Hindu state or a Buddhist state; not a Jewish state or a Muslim state, though it celebrates all these faiths and the many ways in which they enrich the nation's life.

What exactly do they mean? Do they think that we have evolved from a Christian nation to a secular one? Because if they think we have always been a non-Christian nation, then it is indeed the Star Tribune editorial board with "an appalling misperception of American history." Virtually every member of the Founding generation thought that they were living in a Christian nation, although they didn't want the federal government itself to get involved in endorsing any particular denomination of Christianity. And if we have evolved into a non-Christian nation, how did it happen, exactly? Simply by fiat of the Star Tribune editorial board? Or by declaration of the Supreme Court? How do those things matter when the Star Tribune admits that a vast majority of Americans are (at least nominally) Christian and they admit that a lot of American values don't make sense without Judeo-Christian values?

And then, another great part:

The argument also is advanced that the federal courts are violating the First Amendment's guarantee of freedom of speech -- arguably the most important of America's freedoms. But whose speech? Judge Moore's? He can praise the Ten Commandments all he wants, in every forum he wants, except forums purchased by all the people of Alabama. Freedom of speech is an individual freedom, and Moore has no right to abrogate the freedom of even one Alabama taxpayer who takes offense at his display of the Ten Commandments -- as many do.

So taxpayers have a right not to be offended by speech they don't like? Where does the editorial board find that right, exactly? I presume it is in the same copy of the Constitution that contains the "separation clause."

Then, they go for the "big finish":

Perhaps 20 or 30 or 40 years ago, this dispute would not have arisen. Given the public temperament of the times, Moore probably would not have felt a compelling need to display the Ten Commandments. Nor, if he had, would many people have taken much notice, just as few thought it odd that the schools celebrated Christmas and Easter.

But as this nation grows ever more diverse, and as the Christian political right grows in power, the need to be vigilant in protecting the separation of church and state becomes more imperative. That separation serves Christians well and deserves celebration; those who attack it should desist, lest they get exactly the opposite of what they want.


I don't understand what they think "those who attack" the separation of church and state want, and how they will "get exactly the opposite of what they want." Most of those "attackers" that I have talked to want religious views to not be excluded or demeaned in public discourse. Attacking the phony doctrine of "the separation clause" can only help, especially as far as it is applied to prevent any state acknowledgment of religion, as it is in this case.


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