Den of the Cyphered Wolf

Wednesday, March 21, 2012

Church and State

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
First Amendment of the United States Constitution

video platform video management video solutions video player

Note: I started working on this a while ago stuck it in a drawer and came back to it so the timeliness of it is a bit off.

Alright so on ABC's This Week a few weeks ago Rick Santorum took a controversial stance on the concept of church and state. I figure I would discuss what that concept generally is.

First off the concept of separation of church and state isn't actually formalized. That phrase is nowhere in the United States Constitution. However the constitution does have evidence of it. I'll get to that in a bit. Really it's one of the many vague legal and political concepts we as Americans have just come to adopt and accept. There are others as well such as Judicial Review, legal precedence, the executive cabinet, and the two party system. The point I'm trying to make is that just because it's a vague concept that does not make it unimportant or ignorable.

Let's go.

For those not in the know we more or less ripped off most of our "American Values" from John Locke.

Locke was a 17th Century enlightenment philosopher who like I said came up with a number of the concepts that were integrated into the United States Constitution as well as the Declaration of independence and American legal and political theory in general.

If you want the true founding father he's it.

I had to do it.

Every one, as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.
John Locke
Second Treatise on Government

Like I said Jefferson and Madison pretty much blatantly ripped him off. Why is this important? Well one of those legal and political theories he came up with that was ripped off was the separation of church and state.

Nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretense of religion. Those that are of another opinion would do well to consider with themselves how pernicious a seed of discord and war, how powerful a provocation to endless hatreds, rapines, and slaughters they thereby furnish unto mankind. No peace and security, no, not so much as common friendship, can ever be established or preserved amongst men so long as this opinion prevails, that dominion is founded in grace and that religion is to be propagated by force of arms.
John Locke
A Letter Concerning Toleration

He believed pretty much that if you don't you end up with this.

Now in terms of the constitution supporting separation of church and state, people point to the establishment clause of the first amendment,

"Congress shall make no law respecting an establishment of religion." There are a couple of ways to read this. The most obvious is that the United States can't have and official religion, like the English and the Anglican Church. But over the years we've also taken it to mean that the government cannot and should not do anything to validate or privilege one religion over others. The government should be as religion neutral as possible.

The concept was further expanded upon by Thomas Jefferson in an 1802 letter.

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" thus building a wall of eternal separation between Church & State. Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from prescribing even those occasional performances of devotion, practiced indeed by the Executive of another nation as the legal head of its church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect,
Thomas Jefferson
Letter to the Danbury Baptists

Furthermore in there is also the Treaty of Tripoli ratified in 1797 under the Adams administration.

As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen,—and as the said States never entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.
Treaty of Tripoli

I could go on all day with presidential quotes and you might see a few more before this is through but for now let's talk about the courts.

Now the problem with virtually all legal, political or any theoretical idea really is practicality. How is it implemented law implement it. That's what I love about the constitution by the way. It took all these high political ideas floating around and implemented them.

And that by the way is the role of the courts. Figure out how a bunch of words on paper affect people. So let's talk about how they've interpreted separation of church and state.

The first big case was Reynolds v. United States in 1871.

Lets talk about the Church of Jesus Christ of Latter Day Saints also known as those wacky Mormons for a bit.

While it shies away from it now, back in the day the Mormon church was big into polygamy. The rest of the country however wasn't, which lead to the 1862 Morrill Anti-Bigamy Act. Now due to the country having larger issues at the time it wasn't really enforced.

As a result the Mormons mostly ignored it. After a certain obvious tumultuous period in American history, polygamy became a social issue again. And the government wanted to actually start enforcing it. So a this test case was brought to the supreme court. Guess what? You can't legally marry more than one person.

The court basically decided you can't use the "that law is against my religion" as a legal defense. And boy howdy would the universe be wacky if you could.

Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
Chief Justice Morrison Waite
Court Opinion on Reynolds V. United States

Legally this guy would be within his rights.

The law has to be blind to religion or else any num nuts could claim that he was doing stuff because god told him so.

The next biggy is Everson v. Board of Education. Let's talk about states' rights. When the constitution of the United States it mostly dealt with the federal government. That is to say it outlined how the Federal government would operate. States adopted their own constitions. Most of them are blatantly modeled off the U.S. constitution, but there are differences, especially when it comes to the first 10 amendments that pretty much cap what the government can do. Yeah there are a lot of "shall make no laws"s in the bill of rights.

Eventually as a result of the, "obviously tumultuous period in American History," congress decided to nip that shit in the bud, and adopted the 14th amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Constitution
14th Amendment Section 1

Most legal scholars take it basically to mean that if a state law couldn't pass legal muster under the Bill of Rights, states can't do it. The establishment clause is part of the bill of rights and thus applies to state law.

One of the roles of state government is to oversee education. In Everson v. Board of Education the U.S. Supreme court ruled that state governments could offer funding to religious schools if those schools don't get preferential treatment. That is to say if there is a program that funds schools in general it can also fund religious schools. A law and funding granted to the general populous can affect religious institutions.

Separation of Church and State is an important concept that deserves to be discussed and interpreted in the American Political Sphere

(Yeah I know that was tacked on but it's been a few weeks.)

No comments:

Post a Comment

Facebook Comments

Note: These Comments are from all across this blog.