On Pontiffs and Presidents – Keeping Church and State Separate

The First Amendment is undoubtedly the most well-known provision in the Bill of Rights. One could argue just as surely that it is the most fundamental of those initial amendments, securing the free exchange of ideas in our society such that, when other freedoms are threatened, there always remains hope that men might speak freely in defense of their liberties. Its protection of man’s speech, his religious opinions, the press, and his right to assemble and petition the government can be summed up simply as the “freedom of the mind.” Yet there are those in the twenty-first century, as in all times, who oppose such freedom, who would deny by government force man’s right  to discover and speak the truth. The enemies of these rights are numerous and exist on both sides of the aisle, but for the moment, the threat of interest here is not the avowed opponents of capitalism and individual rights on the Left, such as the current administration and its attack dogs in the misnamed Department of Justice who are busy intimidating journalists and seizing their phone records. Rather, a far more dangerous faction exists on the right, in the form of those who claim to value individual rights and to support capitalism, but who work to undermine its rational basis and its core principles: the Religious Right.

As is always the case, more damage is done to the pursuit of capitalist government by its alleged advocates than by its most ardent socialist opponents. Capitalism’s pseudo-advocates muddy the message, so to speak, and cause capitalism to be conflated with that which it is not. They deny to capitalism its proper moral basis (that is, man’s right to pursue his self-interests) and yield the moral high ground to those who could not attain it on their own. In the case of the Religious Right, they supplant the rational, secular basis of capitalist governments with religious faith, and more often than not support policies diametrically opposed to those required by capitalist principles. The Religious Right maintains a strong base of support in the Republican Party, as evidenced by the runner-ups in the Republican presidential primary for two elections in a row, which is enough to edge out more capitalist candidates in the primaries but not enough to actually win seats in an increasingly politically secularized United States. The failed Senate candidacies of Todd Akin in Missouri and of Richard Mourdock in Indiana (both states being among those won by the Republican presidential candidate in 2012) demonstrate as much.

But rather than address the Religious Right generally, one particular error in its political platform deserves exceptional refutation: that of its dangerous misinterpretation of the First Amendment, especially in relation to the Establishment Clause. The alleged “constitutionalists” of the Religious Right are the same who most flagrantly disregard one of the Constitution’s most fundamental principles. It is an error of philosophy, of law, and of history perpetrated by men who demand that the government respect their religious freedoms, but who scramble to the polls to vote away the rights of others on religious grounds.

As the First Amendment reads, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…” If the Religious Right pays heed to this portion of the First Amendment at all, it is most assuredly to its second half, known as the Free Exercise Clause. The first half – known as the Establishment Clause – is either neglected altogether or brushed aside on the grounds that it merely prohibits the federal government from creating an official state religion. In fact, the First Amendment constructs an impenetrable “wall of separation between Church & State.”

“But those words aren’t in the Constitution!” they shriek. Just so, and nor are the words “federalism,” “judicial review,” or “separation of powers.” Are we to believe, then, that those principles are any less inherent in, any less fundamental to, or any less clearly outlined within the Constitution simply because the words with which we describe those principles are not present?

In actuality, the Constitution does erect the “wall of separation” described by Jefferson in his 1802 letter. To see why, one need only look toward the First Amendment’s intellectual predecessor: the Virginia Statute of Religious Freedom. Jefferson first drafted the law in 1777, and it was eventually adopted by the Virginia General Assembly in 1786 – one year before the Constitution was drafted, and three years before the Bill of Rights was adopted by Congress. The most superficial goal of the Virginia Statute of Religious freedom was to continue the eradication of all remaining vestiges of the monarchical rule of Great Britain, including the political privileges afforded to the Church of England. However, the Church of England is never mentioned in the statute, because the Virginia government – like the Founding Fathers more generally – was pursuing a far more impressive goal: secular governance based on reason, not faith.

True, the Founders were almost invariably religious, and they made prominent appeals to religion throughout their lifetimes, never quite capturing the secular justification for the rights that they most accurately identified. Nevertheless, though they were men of faith, they never sought to govern by it. They, as products and heirs of the Enlightenment, knew that faith and government had to be separated – a move that, within the borders of the United States, allowed for the peaceful coexistence of many religions after thousands of years of state-sponsored bloodshed in the name of one religion or another. Per the Declaration, the Founders argued that government exists to protect man’s inalienable rights, which necessarily include his right to choose a particular faith or none at all. The government, on the other hand, must be guided by secular principles of reason to ensure man’s freedom of mind. Such was the cause for the Virginia Statute of Religious Freedom opening with the phrase, “Whereas, Almighty God hath created the mind free.” God or no, man’s mind is and ought to be free – of that they were certain.

The statute continues by declaring it both “sinful and tyrannical” to “compel a man to furnish contributions of money for the propagation of opinions which he disbelieves;” that man’s rights are no more dependent “on our religious opinions any more than our opinions in physics or geometry;” that it is unacceptable for a magistrate to “approve or condemn the sentiments of others only as they shall square with or differ from his own;” that the “overt acts against peace and good order” are not excused from government intervention on the grounds that they were religiously motivated; and that the truth, not government force, “is the proper and sufficient antagonist to error… unless by human interposition disarmed of her natural weapons free argument and debate.”

In essence, matters of religion are a concern of the individual, not of the government. Passing laws on purely religious grounds, as such, would constitute the government acting as a political establishment of religion, favoring one faith over the others and thus codifying its edicts into law. The effect is that other individuals are free to pursue their lives only insofar as their decisions “square with or differ from” the religious policies of the government – an unacceptable infringement on the individual’s liberty of mind.

This was the forerunner of both the Establishment Clause and the Free Exercise Clause, both ultimately being nothing but corollaries of one another. One cannot defend the free exercise of religion while simultaneously allotting to the government the power to pass laws solely based on religious faith.

Of course, the Religious Right is always quick to point out that the interpretation of the First Amendment has changed over time. Most obviously, it has been incorporated to the states through the Fourteenth Amendment, but even then, its interpretation has not been constant. Though the Founders sought a government based on secular principles, they did not always follow through consistently, but this is no particular problem. As Justice John Paul Stevens wrote in Wallace v. Jaffree (1985):

“Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed of the majority. At one time, it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.”

The “crucible of litigation” mentioned by Stevens refers to hundreds of years of First Amendment jurisprudence in which the underlying principles of the Free Exercise Clause and Establishment Clause were clarified, refined, and perfected. In Wallace v. Jaffree, as an example, the Supreme Court was examining the legality of Alabama setting aside a designated time in its public schools for “meditation or silent prayer.” The Court ruled, consistent with Engel v. Vitale (1962), that the state should play no role in promoting religion in schools (or, truly in any fashion), even in setting aside designated times for prayer in school.

Why? Because doing so would violate the Constitution’s prohibition of established religion.  For even when prayer is optional, even when it is not directed by the government, this time set aside in government schools for prayer favors religion over non-religion (not to mention the Christian religion over others that do not have such a thing as “silent” prayer). The countless instances of Catholic children being persecuted for not participating in Protestant scripture readings or prayers (by peers, teachers, and administrators), of Jehovah’s Witnesses being attacked for not reciting the pledge (even before “under God” was added), or of children being confronted for simply refusing to participate in the state-sponsored time for prayer over the history of the United States is all the more justification. Even in the twenty-first century, I have witnessed grade school teachers giving preferential treatment to students who participated in “optional” religious events affiliated with their school. These events, conducive with the dominant Baptist and Methodist faiths of the area, necessarily precluded the other students and adversely affected their educations. Though the schools should ultimately be private, while they are public, they should be as secular as any other aspect of the government.

Contrary to the Religious Right’s delusions to the contrary, “freedom of religion” also necessarily entails “freedom from religion.” This not only means that an individual has the freedom to choose no faith at all, but that the same individual cannot be compelled to abide by religious principles that he did not choose for himself. Any religious obligation he chooses to adopt must be accepted voluntarily, lest it violate his individual rights. The free exercise of religion means just that – the exercise must be freely chosen, not compulsive.

And yet, the Religious Right is currently engaged in a vigorous offensive against the First Amendment. From the claims of some that the states have the right to ban birth control to the assertions of others that gay marriage must continue to remain banned in the majority of the states, all such policies are primarily religiously motivated and are devoid of secular justification. Though they are more than free to refrain from such things and even to admonish others not to participate in them, the Religious Right cannot utilize government force to outright ban them under penalty of law. Many within the Religious Right, riding the wave of political activity spawned by the Tea Party, have sullied the message of the Tea Party and have caused that movement to now be equated with their own. Even so, I believe the Religious Right is a movement on its way out.

The Religious Right cannot long survive in politics, not in this century. But while it lingers, it will continue to serve as a nuisance to those arguing rationally for individual rights – the rights of all individuals, and not just those party to the religious sect of the majority. Capitalism necessitates the abolition of all policies rooted in nothing but religious principles and, indeed, all policies not rooted in the protection of man’s individual rights.

However, the Religious Right need not believe that capitalism is hostile to their religious rights, as it is not. They may have their faith and believe what they will, say what pledges they want, and put whatever mottos they desire on their buildings and official documents, but they may not use the government as propagandist and enforcer of their religious doctrines. Provided they do not violate the rights of others, they may practice whatever religion they please. This is the fulfillment, not the decay as some believe, of their First Amendment rights – to go about their religious affairs unmolested by the state, so long as they do not initiate force against others. In the eyes of the Founders, this is to the benefit rather than the detriment of religion, and the absence of religious civil wars within the United States is a testament to that conviction.

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