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Separation of Church and State

Postby Sober Till the Night » Mon Nov 21, 2016 4:28 pm

In the First Amendment to the Constitution of the United States, what does the Establishment Clause and Free Exercise Clause mean to you?

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

In my opinion, The only way to show all religions equal respect is to keep all religion out of government. If we allowed all religions to make laws based on their belief system, we'd end up with many contradictory laws. And if you only allowed some religion to make laws based on their belief system, then the government would be respecting the establishment of some religions but not others. which would mean we'd no longer have true freedom of religion.

Should the United States government accept religious beliefs as a valid justification for a law?
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Re: Separation of Church and State

Postby jimwalton » Mon Nov 21, 2016 4:29 pm

By my understanding, the establishment & free exercise clause prohibit the government from creating and enforcing particular religious belief and exercise. The rejected model was the of European countries with their "state religions," and the Founding Fathers wanted no part of that. Therefore they wrote that the government needs to keep their fingers out of the religion pie in terms of forcing people in one direction or another.

The purpose was never to keep all religion, and observance of religion, out of government. This falls under the Free Exercise portion. Anyone in government has just as much right to exercise their religion freely as anyone else does. What they can't do is force someone to believe and/or exercise in any particular way.

> If we allowed all religions to make laws based on their belief system

This gets dicey, since many religions, and particularly the Judeo-Christian perspective, are moral religions. Our belief system includes "Don't steal," "Don't kill," "Don't lie," and other worthy laws that belong in the books. Certainly, as you say, we can't allow all religions to make whatever laws they want because, as you say and I agree with you, we'll end up with Hobo Stew.

But to allow some religion to make laws based on their belief system is not establishing that religion, it's possibly recognizing the general goodness and rightness of such a statute. As I mentioned, since "Do not kill" is a good law for all, it should be established, not because it's Judeo-Christian (though it is), but because it's right. That's not what establishment is. Establishment is "You have to be a Christian no matter what you believe," not "Well, Christians believe killing is wrong, so we can't possibly go there."

Nor would that mean we no longer have true freedom of religion. Christianity says stealing is wrong. Just because a government legislates the criminality of stealing doesn't mean they have "established" Christianity, nor does it mean that Christians no longer have true freedom of practice.

> Should the United States government accept religious beliefs as a valid justification for a law?

Religious beliefs are not the instrument of good law. Morality is. But in many places many religious beliefs coincide with morality. Just because Christians believe it doesn't mean it should be made law. The laws of the Old Testament were written for the national of Israel and pertained to its being a theocracy. Once the theocracy is gone (Israel was conquered in 586 BC), those laws are no longer valid. They were for Israel. In the same sense, the moral manifesto of Jesus is for Christians, not for the whole world. We Christians follow Jesus' commands, but His commands aren't for those who don't follow Him.

But there are many things in the OT as well as the NT that turn out to be good ideas for a society that wants to live in justice and peace. In those cases, those religious beliefs are a solid and valid justification for civil law, not because they are religious ideas, but because they are just.
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Re: Separation of Church and State

Postby Average Joe » Tue Nov 22, 2016 11:17 am

Government officials ARE prohibited from exercising their religious beliefs when acting in their official capacity. That is kind of the point. An official exercising their "freedom of religion" at work is akin to state sponsorship of that person's religion.
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Re: Separation of Church and State

Postby jimwalton » Tue Nov 22, 2016 11:28 am

I beg to disagree. The original intent of the drafters of the constitution, the Bill of Rights, and the constitutional amendments was to disallow the government from forcing any religion on any citizen. If you study the biographies of those men, you will quickly discover that they were all religious men who indeed expressed their religious beliefs when acting in their official capacity. You're certainly familiar with the preamble of the Declaration of Independence. You must be aware that every session of Congress opened with prayer and Bible reading. Look at the writings and actions of our first 30-40 presidents, and the Congresses with which they worked, and there are many examples of exercising religious beliefs when acting in their official capacity. Familiarity with the actions and quotes of Abraham Lincoln shows many references to religious beliefs in his activity as president. They were assuredly very free to exercise their religious beliefs when acting in their official capacity. That, they were dedicated to ensure, was a constitutional right to the free expression of religion. And that's the point. It is only in recent days (the past number of decades) that the interpretation of the Constitution and the First Amendment have been narrowed to try to exclude all exercise, expression, or even mention of religious beliefs in governmental action. But that was certainly neither the intent nor the practice of the first two centuries of our country.
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Re: Separation of Church and State

Postby Sober Till the Night » Tue Nov 22, 2016 12:04 pm

Religion isn't needed to pass laws like "Do not kill" or "Do not steal". I don't think we should avoid making common sense laws just because they happen to coincide with some some religious doctrine. I'm just saying that I do not think we should make laws just because of some religious doctrine and nothing else.
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Re: Separation of Church and State

Postby jimwalton » Tue Nov 22, 2016 12:05 pm

If you read my post, I think I'm pretty safe in saying you and I agree with each other. Religion isn't needed to pass moral laws, and we shouldn't make laws just because of some religious doctrine and nothing else. I agree with that.
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Re: Separation of Church and State

Postby Average Joe » Tue Nov 22, 2016 2:11 pm

I'm an attorney and a constitutional scholar and while you may feel free to disagree all you like, your response above is almost entirely incorrect and reads chapter and verse from the modern evangelical narrative of the Founding Fathers and the separation of church and state (a narrative built on a number of outright falsehoods, I should note).

The Founding Fathers were not some Christian cabal. Some spoke of their Christian faith but many were deists at best and a number were atheists for all intents and purposes (I recommend reading about the Jefferson Bible, for instance). The ideals enshrined in the Constitution derive wholly From Enlightenment philosophy, not from the old or new testaments. It's interesting that you should mention the preamble to the Declaration of Independence because that is sole mention of "god" (and I assume you're read it as well because it mentions a creator, not God in the Christian sense) in either the Declaration or the Constitution. The former does not have the weight of law, in any event.

Lincoln wasn't a Founding Father.

The perception that modern interpretations of the First Amendment read in a prohibition on governmental exercise of religion is also patently false. What you see as a restriction developed in recent case law is actually a response to overreach by Christians as flagrant religious elements were inserted into government. See the changes to the national motto and pledge of allegiance in the 1950s.
All of that to say that the right enumerate in the First is, and was always meant to, enshrine a right to freedom from religion, not merely freedom of religion.
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Re: Separation of Church and State

Postby jimwalton » Fri Dec 30, 2016 2:57 am

Thank you for your insights. It's a pleasure to dialogue with you. The evidence strongly contradicts your claim that the Founding Fathers were more deists than Christians. There is overwhelming historical evidence that only the smallest minority would fit the definition of a deist. On a careful reading of what I wrote, however, you'll notice I never used the term "Christian," but only "religious," which they were.

As far as Thomas Jefferson is concerned, I have read tales of his Bible where he removed sections not to his liking, so I'm aware of that as well. But even Jefferson identified himself as a Christian, and not a deist. By Jefferson's own words in a letter to Charles Thompson in 1816: "I am a real Christian, that is to say, a disciple of the doctrines of Jesus." And while Jefferson didn't believe in the deity of Christ, he still self-identified as a Christian, and not anything else.

Nor did I contend that Lincoln was a Founding Father. You'll notice again, with a more careful reading of my post, that I used him as an example of religious expression in the course of official duties, a fairly irrefutable claim. I also agree that the ideals enshrined in the Constitution are more from Enlightenment philosophy and philoso-political writings of the day, not particularly from the Old and New Testaments. (Although I would still argue that reference to a "Creator" in the preamble is a reference to a spiritual being, a deity, if you will, especially since it is capitalized.) I never made a claim to the contrary. My only claim, as you can read, is the acceptance of expressing religious beliefs in the course of official activity. I fear that in your haste to refute you made some false assumptions and jumped to some unwarranted conclusions. Perhaps on seeing the label as "Christian evangelical" your mind went to a place that my post never took you.

I also agree that in the modern era Christian evangelicals strove to overreach appropriate interpretations, in their own haste to influence public policy.

The real point of discussion is your concluding sentence: "The right enumerate in the First is, and was always meant to, enshrine a right to freedom from religion, not merely freedom of religion." It was never a statement intended to restrict religious expression, but exactly the opposite: to guarantee rights of expression in speech, press, religion and assembly. Since the terms are bracketed together in the same category, we can't claim a right to freedom *from* religion any more than we can claim that the drafters' intent was to guarantee freedom *from* the press, speech, and assembly. Jefferson, in his letter to the Danbury church, affirmed that the purpose was to prevent establishment and to protect free exercise, whether in official capacity or not. In Emerson v. Board of Education (1947), the Supreme Court made clear what the point is: "Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another." There is no expression either in the amendment or its legal interpretations that the amendment was intended to forbid the free expression of religious beliefs, even in an official capacity, as long as that expression cannot be construed as intending to **pass a law** of religious establishment or preference. Even the Lemon test only speaks of purely religious agendas, with a principal effect of advancing or inhibiting religion fostering excessive governmental entanglement. Even these don't prohibit the free expression of religion, which is what the amendment was designed to ensure.


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