The Electric Commentary

Monday, December 18, 2006

Reading the Constitution is Hard, Part II: The Myth of the Myth of Separation.

You probably won't make it through the Christmas season without hearing at least some discussion of the separation of church and state. Usually this happens when some local government tries to put a nativity scene on public land, or something similar. And it's also a near certainty that you'll hear some religious type say something like:

1. There is no separation of church and state, or

2. The first amendment is there to protect the church from the state, not the other way around, or, most idiotically,

3. The words "separation of church and state" never appear in the Constitution. This argument is entirely semantic, if it is an argument at all.

So, what does the Constitution actually have to say about religion? Most people can't actually answer this question. (Something that the first and second amendments to the Constitution have in common.) The First Amendment has the following to say on the subject of religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

That's it! Not even an entire sentence, just a simple little phrase. So what does it mean? Before we get into that we need a quick lesson in Constitutional interpretation.

The Constitution's main purpose is to spell out what the Federal Government may do. It is supposed to create a government of "limited and enumerated powers." Simply put, if the Constitution doesn't spell it out, then the government can't do it.

Over time a bunch of stupid justices who can't read have flipped the Constitution on its head: now the government can do anything it wants unless it is prohibited by the Constitution. This was never intended by the framers, but it is now the norm of American jurisprudence. Anyway, some of the framers also knew that at some point a bunch of irresponsible illiterate people would gain power and start to expand government power despite the Constitutional prohibitions against doing so, and that is why they created the Bill of Rights. Some have argued that it is the Bill of Rights that led to the current state of American jurisprudence by creating the impression that individuals are only guaranteed those rights specified in the Bill of Rights (and they're probably right), but for better or for worse, we have them. Fortunately they are very clear.

The Bill of Rights guarantees the rights of individuals. When some religious type person says that the First Amendment is there to protect "the church" he couldn't be more wrong. It is there to protect one person; You. Most of the framers, after all, came from a land of state-sponsored religion, and many settlers to the new world were, to be blunt, religious wackos. The Pilgrims, for instance, were completely nuts. Why would these people want to protect any church? Aside from the fact that most of the framers were deists, they also understood the tyranny that could accompany a state-endorsed religion. Moving along...

The first portion:

Congress shall make no law respecting an establishment of religion

simply means that the state will not make you follow any religion. It is a statement of government neutrality. No religion may be forced upon you. If tax dollars go towards a nativity scene, that would violate this portion of the amendment. Government would be respecting an establishment of religion.

The second portion is as follows:

or prohibiting the free exercise thereof

This simply means that you can believe in and engage in the practice of any religion that you choose. If we put the two phrases together and translate into modern English we get something like the following:

The state can not force religion on you, and it also can not stop you from believing whichever religion you choose.

That is all. So, you've heard of those "Ten Commandments" monuments in courthouses? They are major violations of the Constitution. Tax exempt status for churches? Those are too.

What I find odd is that, in my humble opinion, the church-going and the atheistic use tactics that are directly opposite their own selfish interests. Most western nations with strong church-state entanglement have seen a major decline in their church-going populations. It seems that not even God can overcome the incompetence that ensues when the state decides to intervene. The freedom granted to religious institution in the US, a freedom which some of them despise, is probably responsible for the strength of religion in this country. The fastest way to put a big dent in American Christianity would be to make Christianity the national religion, and the fastest way to keep religion growing is to keep the state out of it.

Which is not to say that I'm in favor of a national religion; I'm not. I believe in the marketplace of ideas, and that the correct ideas will eventually crush the bad ideas. I just think it's odd that these two adversaries misuse their political power to such a great extent.

We are only supposed to believe in ideas if those ideas are correct, and the best ways we have to determine the validity of ideas are through reason, debate, and research. When the state endorses an idea, (any idea whether it is religious or not) the power of that endorsement skews what is supposed to be a fair marketplace. It diminishes our ability to judge an idea based solely on its merit.

The government's only tool is force. Force should only be applied in rare circumstances, and never in an intellectual battle. If an idea needs force to survive, it's probably a bad idea.


  • "Congress shall make no law respecting an establishment of religion"

    Spending some tax money (however improperly) on a religious-specific decoration for a public-or-government building is not the same as passing a law recognizing that religion. It may be foolish these days, but it's still different.

    If you think it's the same, I'd suggest that you're the one misreading or misinterpreting the constitution.

    By Anonymous Anonymous, at 3:19 PM  

  • Yeah Paul, you definaely left out the 14th amendment from this discussion. The 1st amendment does not apply to states of municipalities by itself. However, the 14th amendment incorporates the 1st. I know you know that and just didn't mention it. Other than that though, your interpretation checks out.

    By Blogger JesusIsJustAlrightWithMe, at 3:55 PM  

  • I will have to respectfully disagree with your modern day interpretation of the separation of church and state.

    I see how you go from:

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"


    The state can not force religion on you, and it also can not stop you from believing whichever religion you choose.

    But how do you go from that to:

    The ten Commandments in Court and tax exempt status for religions is unconstitutional?

    Isn't that assuming that displaying the ten commandments constitutes making a law, and that not allowing them to be displayed in a public building is not prohibitive of the exercise of some religion?

    Is making a religion tax exempt the same as making a law respecting an establishment of religion, or is it neutralizing the prior law that would have otherwise taxed the religion? Or, is it a practical means to ensure that the free exercise of religion is not prohibited (kind of like the judge-made evidence suppression doctrine, totally made up, but anyone got any better ideas?). Or, is tax exempt a law made to ensure the literal meaning of the second part of the sentence, that exercise of a religion is to be free, meaning you pay no money (taxes) to do it. The second part seems to be more specific than the first part, and therefore controlling, right?

    I would not agree with your statement that just because tax money is spent on a religous symbol means that a law has been made respecting that religion. Besides, what if, as most often is the case, the religious artifacts or symbols are totally donated to the government building?

    Some interpretation is necessary. Your's is a common sense, practical interpretation, but it is still an interpretation, and I think it does some overreaching with regard to your position on ten commandments and tax exmpt status.

    Yes, bufoons abound on both sides of the issue, but one reason for that is Constitutional Interpretation is hard, unclear, and arguable. Yes, the argument that it doesn't say "separation of church and state" in the constitution, and therefore no separation of church and state is required is dumb. But then how do you justify the position you seem to be leaning to, which is that there must be a total separation of Church and state? A total separation of church and state is not the same as no law respecting an establishment of religion and no law prohibiting the free exercise of thereof.

    By Anonymous Anonymous, at 5:35 PM  

  • Anonymous.

    I disagree with you on the Ten Commandments. On the tax-exempt thing, I disagree with Paul, although it could be done wrong.

    "Spending some tax money... on a religious-specific decoration for a public-or-government building is not the same as passing a law recognizing that religion"

    The problem with this argument is that the 1st Amendment doesn't say "passing a law recognizing" it says "respecting". Thus, the clause is broader in meaning than you make it sound. "Respecting" could mean "regarding" or it could mean "to allow to occur with no hinderance or interference". Technically, if the government spent money on it, Congress allocated that money and allowed to be spent that way. Passing a law that allows public money to be used to further a religion in public, much less implying that a religion's code is the foundation of our judicial system, is cleary a violation of either meaning. If you want to argue it isn't, then you'd have to allow a loophole so large that it could allowing billions to be spent on promoting a specific religion through government funds as long as Congress didn't specifically allocate the money for it. That would make the clause almost meaningless, which I doubt was its intent. As for donated items, it isn't as strong of an argument, but Congress would have to allow it to happen, which would mean passing a law allowing individual government employees of significant stature to display their personal religious items on government property in a prominent way, so prominent in the case that was struck down, that it implied an endorsement of religion. Maybe the language doesn't technically bar it, but wouldn't it undermine the whole point. Judges or officials rarely get to put their personal opinions and views in prominent displays on government property.

    So the Ten Commandments are out, although I'm with Breyer on his split where they were okay as a non-prominent part of a larger display of historical codes of law.

    As for the non-taxing of religion, well non-profits have many similar tax exemptions. As for direct taxes, which I don't think was the point of Paul's post, taxing specifically churches would amount to the power to destroy them, for the power to tax is the power to destroy.

    If you don't believe me anonymous, how about Congress allows a billionaire to hang a giant sign saying "Jesus was a fraud. Mohammed was the greatest prophet." in giant letters on the Capitol building? Or how about "There is no God except Ganesh!" Would these be acceptable to you?

    By Blogger Scott H, at 7:01 PM  

  • JIJAWM, I ddin't feel like getting into the 14th, and for the layperson I don't think it's that important. Plus with all the lawyers/students who read this thing I knew that one of you would mention it.

    As for the "but that's not Congress making a law" argument, it fails on two counts.

    First of all, I consider the effects of laws, not the intent, as the intent is meaningless. If tax dollars are spent on a religious display, someone has had their hard-earned money taken from them, via the law, mind you, in order to respect an establishment of religion. The Constitution does not just ensure that laws must be on-their-face compliant. If the force of government is given to support a religious message, it is unconstituional.

    Even if someone donates a statue of the Ten Commandments to be displayed in a courthouse I have two issues:

    1. You have no right to have something in a courthouse. If 10 people donate statues, do you have to exclude a few, just for the sake of space? How do you choose?

    Courthouse space is a scarce public resource. Accepting the statue is an act that endorses that statue, and if that statue contains a statement of religious evangelism (like the 10 Commandments) then acceptance of that statue is unconstitutional.

    On a federal level this it's easier, obviosly, as the government isn't supposed tobe doing most of the spending that it does anyway, and certainly spending that respects religions is doubly invalid, but even on a state and local level, actions of this type are still clearly unconstitutional.

    Even tax exempt status. If taxes are levied on everyone except the religious, that is surely giving tacit consent to religion at the expense of the individual.

    Scott I agree with most of what you say, except that I think "respecting" means "respecting."

    Also, I could be wrong about his, but I believe that church status is superior to 501(c)3 status.

    And clearly, taxing religion in excess of individuals would violate the free exercise clause.

    By Blogger PaulNoonan, at 7:15 PM  

  • I forgot to put my second "issue" in thecomment above.

    2. Even if accepting a free statue of the ten commandments was not an endorsement via the sacrifice of scarce display space, the extra credibility that a display on public land lends to such an artifcact is also an unconstitutional endorsement of religion.

    By Anonymous noonius, at 8:00 PM  

  • Respecting is a word with more than one connotation. I was just trying to illustrate that it was broad. Those are dictionary definitions.

    As for the tax thing. I can see the difference between not impeding something and establishing it. Besides religion is generally compatible with many of the types of organizations that have tax exempt status. (I haven't taken tax yet, which I blame on scheduling.)

    By Blogger Scott H, at 9:53 PM  

  • Again, let me quote this:

    "Congress shall make no law respecting an establishment of religion"

    You guys try to talk so smoothly that it almost sounds good enough to be true; however, you've talked right over the main point of the sentence. The spending of money by government does not involve the creating of a law. Likewise, taxes were not established, and new taxes are not established, because ten commandment artwork needs to be afforded and placed in courtrooms across the nation. Simply put, a decoration on a wall is not a law, no matter if government funds paid for it or not.

    Now before you try to twist the words and meanings and basically broaden terms to fit your purpose in trying to defend your views, I ask that you realize that it's exactly what you're doing. The constitution and bill of rights were not million-word bastions of legal jargon. Let me step slightly off-track here for a moment before I pick back up on this:

    Paul admits in the comments that he's interpreting law as the effects and not the intent of the law. That's stupid, plain and simple. Congress makes and passes laws with an intent, and has no control over how judges interpret them, no matter how clearly they try to write them. If you have a problem with interpretation of the law, that's judges, and lawyers and politics influencing judges. Sure, Congress has imposed taxes. That in no way says they've collected tax money so that it can be spent on "respecting" a religion. You have a problem with the money being spent on religious decorations, and you're trying to blame Congress and "laws" that have been passed to collect that money? Get over yourself.

    To come back to the point I was trying to make, let us again pick up the point that the constitution and bill of rights were written long ago, without millions of words to try to protect everything they were trying to represent. When the first amendment was written, the writers had an intent. And if you read the sentence you reference, it's actually quite clear at face value. It's only when you read things into it that you start to come up with problems. The law does not allow Congress to make a law to create a national religion, or to force anyone to change religions, or to force anyone to believe in any god, etc. The main point here, i to create a law.

    An artistic depiction of the ten commandments does none of these things. It does not force you to change religions, or to worship a god, or to have those rules (the ten commandments) imposed upon you via the court, etc. Heck, it doesn't even force you to READ them. AND, there's no law saying that the ten commandments has to be displayed in court rooms. And thank goodness it's been mentioned that they may have been donated, since the confusing of buying them with displaying them is alarming. Just because they are purchased does not mean they are displayed. The are separate points, and should be made separately.

    So, effectively, the argument should only boil down to the display of them (as that's where this discussion started). And again, displaying them has absolutely no bearing on how you will be judged, or how laws will be interpreted, in a court of law. And if it doesn't affect you legally, how can you define it as a law? You are obviously using a different definition of law than I am. I'd be interested in hearing yours. You're saying I'm not broadly enough interpreting "respecting". Before that even becomes and issue, however, I'm saying you're interpreting "law" far too broadly. Displaying the ten commandments may be an endorsement of, or showing respect for, a religion, but it's not a law. Never will be. The sentence says "law", and I'm leaning towards believing that the writers of the first amendment intended it to mean "law". I''m sure you don't like it, and I'm sure you'll argue against it, I just can't imagine how. May I suggest starting with your definition of "law". Then, explain to me how it is Congress that has made this law. That will be a good start.

    This is not to say that I think that the ten commandments or any other religiously-toned artwork belongs in a courtroom, or any governmental building. I have no interest in debating whether or not they belong in a courtroom, much less trying to defend or support their existence in a courtroom. I just think, legally, it shouldn't be a big deal either way.

    I was debating even addressing the other, more superfluous argments or points made, but I feel like I need to at least elaborate a little bit, even though I find the points made in this context rather silly.

    Case in point: the mention of "Jesus was a fraud. Mohammed was the greatest prophet." and "There is no God except Ganesh!" being displayed "in giant letters on the Capitol building". We go from talking about the ten commandments being displayed in a courtroom to these sentences being displayed "in giant letters on the Capitol building"? How quaint.

    The ten commandments contain some (in my opinion, good) moral code to live by for everyone. I mean, don't kill, don't steal? Yeah, I wish everyone lived by those codes. Likewise, our government feels the same way, as they've made those things illegal. Some of the commandments get religious, such as the "thou shalt have no other God before Me", but for the most part, it's a good set of moral rules to apply to life. This is in stark contrast to your two example sentences, which offer no detail on what values one should live by. Aside from all that, though, is that you're asking me if they're ok. I never said the ten commandments were or were not ok. I never stated that they should be in a courtroom. The sentences themselves are silly to compare to the ten commandments, and asking me to pass judgment on them is even sillier.

    By Anonymous Anonymous, at 10:40 AM  

  • It doesn't matter if the ten commandments are in a courtroom or somewhere else: someone's gonna bitch no matter where they are.

    I grew up in Marshfield, and on the way into town from the South, there always existed a religious statue just off of the East side of the road. Every year, people (it always seemed as though they were from the likes of liberal Madison) would drive through, see the thing, and get all bent out of shape. They'd write into the newspapers and such.

    Now, the interesting thing about it is that it appears to an outsider that the statue is on public land, being set out in front of a rest stop. As I understand it, it's private land, or was somehow turned over to the public such that the placement of the statue cannot legally be challenged. So, you would think that these outsiders would 1) not care, since they don't live there anyway, and 2) give up when they realized the statue was not on publicly-controlled land. Not so. There was lobbying done in Madison to try to have the statue removed. So, basically, a religious ornament on private land drew not just the ire of wanderers-through, but some legal challenges as well.

    Proving once again the people are prone to being stupid and bitchy.

    By Anonymous mitch, at 10:57 AM  

  • True dat, Mitch. If it's on private land, I'm all for it.

    Anonymous, if you don't think that levying taxes requires a law, then you don't know what a law is.

    Judging a law on anything other than the effects of that law is idiotic. If the government passes a law to "protect us from terrorism," just as a hypothetical, and they give it some uber-patriotic sounding name, like, for instance, the USAPATRIOT act, and if, just as an example, not based on anything in real life, this act doesn't do much to fight terror but insteat oversteps the limits set by the Constitution in some way, should that law be allowed to stand just because it was intended by congress to "fight terrorism."

    What if Congress allocated $1,000,000,000 to Pat Robertson's Operation Blessing to "fight poverty in a nonreligious way." Would you look at what the law says, or what the law does?

    By Blogger PaulNoonan, at 11:14 AM  

  • I never said levying taxes doesn't require legislation. I merely stated that I doubt there's ever been a tax levied or a tax increase approved that said, "we need more money to put the ten commandments in courtrooms". A new tax or a rise in tax does not coincide exactly with a budget nor that budget's approval. Thus linking a tax levy or a tax increase to any specific expenditure is not direct in a cause-effect way.

    And I say it's idiotic to say that the law states, as a citizen, I have the "freedom of speech", but then later am found by a judge to owe someone $10,000 because I said something that essentially made them feel bad. That's crap.

    By Anonymous Anonymous, at 11:54 AM  

  • "And I say it's idiotic to say that the law states, as a citizen, I have the "freedom of speech", but then later am found by a judge to owe someone $10,000 because I said something that essentially made them feel bad. That's crap."

    Yes, that is crap.

    Part of the point is that when congress does violate the Constituion they tend not to announce it to the world. They're smarter than that.

    By Blogger PaulNoonan, at 2:37 PM  

  • I don't have much time. Yes my example was insulting and overdone, but my point was that you or someone Christian would probably object. I certainly would. To someone not of our faith much of the 10 commandments is objectionable. The first four are almost entirely religious instructions.

    The first says to have no god other than God.
    The second says not to worship any images or earthen things or other false gods.
    Three and four are about the sabbath and using the Lord's name respectfully. Or maybe 5 is one of these and obeying thy mother and father is higher.

    I'm not a complete literalist and you're not going to convince me by being completely literal and restricting law to its narrowest possible definition. I don't see why the framers would allow government officials to establish a state religion as long as Congress hasn't explicitly done so. Yes they were religious men, but they dealt with plenty of religious conflict.

    By Blogger Scott H, at 3:39 PM  

  • I actually have to concede a bit to our anonymous friend, because he's right that the first amendment, by itself, does not prevent anyone except the Federal Government from endorsing religion. But the 14th amendment does do this, and explaining why will be a future post.

    By Blogger PaulNoonan, at 7:15 PM  

  • There are two anonymouns posters. I'm the second one to appear. I actually mostly agree with your stance on the ten commandments in court, but it takes interpretation to get there. For instance, the interpretation currently approved by the Supreme Court, that it is ok in certain situations, is a good one, in my opinion, because it doesn't make any association of religion and the state equal to a "law." (Doing so would be a stretch in my opinion)

    Look at the language again, and it becomes more unclear. Shall congress make no law respecting (showing respect or with respect?) to an (any one religion in particular or all religions?) Religion? But if no law is made respecting a religion, how is the second part, the part about not prohibiting the free exercise thereof, maintained if religions would be oprressed or harrassed in different ways, like through taxation?

    As for the hypothetical of some wealthy donor commissioning a sign that was "mean" to a religion, well, the federal endowment for the arts did something very close to that by commissioning the piss Christ. Does that respect religion, well no, unless you think "respect" means "with respect to." Does it prohibit the free exercise of religion? I would say maybe but not really, even if your money is being used indirectly by the government to critique your religion. I still don't see where the law being made respecting a religion or prohibitng one comes in by paying some artist to create his or her own art. (I'm assuming that the art was critiquing religion, although it may not have been.) In short, I don't see how that would be an example of Government making a law respecting an establishment of religion or prohibiting the free exercise thereof. (We're totally disregarding freedom of speech here for now)

    I am the first to admit that displaying the ten commandments in court is much, much different, and can very reasonably be taken as the state endorsing a religion. Therefore, I see no problem intepreting such displays, or one that says, "Jesus is no good" in neon letters at State Capitol Building as being unconstitutional.

    Still, I don't think that all displays of any religiosity on public property would be unconstitutional. I don't think the Constitution dictates that the nice statue the Boy Scouts gave your state Capitol back in the 1970s should be knocked down, because it refers to God towards the bottom. This is my interpretation based on the Constitutional text. That is because I don't see the law being made in such a situation.

    Giving 10 million of tax money to some religious organization would be extremely troubling to me, but not in every situation, if say, it was to a private school conglomerate through a voucher system, and the school met existing state requirements, and there were meaningful alternatives besides that.

    And I do think the intent of a law is extrememly important. Without it everything would be unconstitutional. Every law discriminates, that is the reason for having them, to discriminate in favor of things or against other things. Zoning a plot of land for residential use is constitutional in my opinion. Zoning it for residential use after a Mosque was just built there, or about to be built, and I say interpret by trying to look for the intent. Paul, if the Patriot Act was meant to protect us from Terrorism, and doesn't, isn't the law failing to live up to the intent important in getting it overturned?

    Are the various interpretations we're discussing perfect? Certainly not.

    By Anonymous Anonymous, at 1:29 PM  

  • Anon1 back. I like most of what Anon2 said. I don't think the ten commandments belong in a courtroom; however, having them there, while it may "endorse" religion, is still not a "legal union" in any way (thus why I don't find it a big deal). It does not mean that if you step in the courtroom, that you will be ruled against if you "put any god before me". No one is being judged in a court of law or arrested or being handed a bonus check because they are or are not catholic. If that happens as a result of the ten commandments hanging there, then it is a big deal. Until then, I can't say that it is.

    By Anonymous Anonymous, at 2:28 PM  

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