Wednesday, October 26, 2011

Hugo Black and the real history of "the wall of separation between church and state"




Commentor anonymous:

...[T]he Supreme Court has been consistent through the history of the United States on the subject to the establishment Clause, with the cases building on each other in a very easy to follow manner. Whine all you want, but this is not a set of precedents that are likely to be overturned any time soon, if ever.

Let's take a closer look at "separation of church and state" in American culture and law.

Of course "a wall of separation between church and state" is found nowhere in the Constitution. It was a casual phrase used by Thomas Jefferson in a personal letter written to the Danbury Connecticut Baptists association in 1802. Jefferson played no role in the ratification of the Constitution, and his personal letters obviously have no credible bearing on Constitutional law.

In fact, the Establishment Clause of the First Amendment

"Congress shall make no law respecting an Establishment of religion..."


was ratified in order to protect state established churches.  At the time of the ratification, many states had official churches.  The Establishment clause was ratified in large part to prevent federal interference with local government-sponsored religious activity-- to protect local governments' sponsorship of religious activities from federal censorship. Established state churches only disappeared with the 14th Amendment, which applied the Bill of Rights to the states through the doctrine of incorporation.

Jefferson's letter was forgotten for a half century, until it was reprinted in 1853. His phrase "wall of separation between church and state" first appeared in Supreme Court jurisprudence in 1878 in the Reynolds v. United States decision. In that ruling (about a bigamy conviction of a Mormon), the Court found that invocation of "religious duty" was not a defense to a criminal indictment.

The "wall of separation" phrase languished in jurisprudence for another 70 years, but it did not languish in American culture.

In the early 20th century, anti-Catholic bigots promoted the doctrine of "a wall of separation between church and state" to extinguish Catholic schools and other institutions. The Ku Klux Klan spearheaded the "wall of separation" doctrine. From the Seattle Civil Rights and Labor History Project:

During the Ku Klux Klan’s revival during the 1920s, the organization formed a strong presence in the Pacific Northwest. In Washington, the majority of the Klan’s work was devoted to passing an anti-Catholic school initiative and attempting to spread their particular brand of white, Protestant supremacy. Yet while Oregon passed an anti-Catholic school bill in 1922, heavily backed by the Oregon Klan, Washington voters rejected a similar measure–and the influence of the Washington Klan–two years later. The Ku Klux Klan that surfaced in the 1920s formed the second wave of Klan activity in the United States. Unlike the first emergence of the Ku Klux Klan, formed in the South in 1868 and mainly concerned with keeping black people from exercising their new freedoms, the second wave of the Ku Klux Klan focused their efforts on a wider range of issues. This new wave portrayed themselves as a race-protecting group that “espoused a virulent form of racism, anti-Semitism, anti-Catholicism, and anti-immigrant sentiment. . . .”

. . . The Oregon School Bill aimed to close private Catholic schools in Oregon and have the children sent to the public school system. Since public schools taught state-mandated curricula, the Klan saw this measure as a way to “Americanize” Catholic children and limit the amount of “non-Protestant” instruction they received. Oregonians who supported the Compulsory Education Bill, including the Oregon Klan, made the argument that private and parochial schools were often controlled by non-American organizations that emphasized foreign ideologies over traditional American values.

So how does this invocation of "wall of separation between church and state" become Supreme Court doctrine, extending from a casual phrase by Thomas Jefferson in a letter to an obscure comment in an 1878 Supreme Court ruling on bigamy to a pervasive doctrine of anti-religious censorship in the public square in the 21st century?

Here's how:

On August 11, 1921 Fr. James Coyle, a Roman Catholic priest in Birmingham, Alabama, was shot to death on the porch of his rectory by E.R. Stephensen, a local Ku Klux Klansman. Fr. Coyle had just performed a wedding between Stephensen's daughter and her Puerto Rican husband.

Stephenson was defended by five lawyers, four of whom were Klan members. The fifth lawyer who volunteered to defend Stephenson was Hugo Black, a prominent local attorney. Despite the fact that the Catholic priest was unarmed and the murder was committed in public in front of witnesses, Stephensen was acquitted of murder based on "self-defense"and "temporary insanity".

Defense attorney Black joined the Ku Klux Klan after the trial. In the Klan, Black was a Kladd of the Klavern, which was an initiator of new Klansmen.


From The Volokh Conspiracy:


... Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.”... Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed... 

Several years later, Black ran for U.S. Senate from Alabama. He barnstormed the state, campaigning on a virulent anti-Catholic platform and demanding "a wall of separation between church and state". His strongest support came from his Klan base, and he gave many anti-Catholic "wall of separation" speeches to Klan meetings across Alabama.

Black, a Democrat, won the Alabama senate seat in 1926, defeating his Republican opponent with 80.9 % of the vote. He easily won re-election in 1932, with 86.3 % of the vote. He was a staunch defender of FDR's New Deal and of Roosevelt's court-packing plan.

In 1937 Roosevelt appointed Black to the Supreme Court. Despite controversy about his Klan history, Black was easily confirmed. He quickly acquired a reputation for idiosyncratic interpretation of the Constitution.

In 1947, Justice Hugo Black wrote the majority opinion in Everson v. Board of Education, the landmark Establishment Clause Supreme Court decision that barred use of tax revenues to transport children to religious (Catholic) schools.

Justice Black wrote:

No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" 330 U.S. 1, 15-16 [emphasis mine]

In 1962, Justice Hugo Black wrote the majority opinion in Engel v. Vitale, the landmark Establishment Clause Supreme Court decision that outlawed prayer in public schools.

Justice Black wrote:

The petitioners contend among other things that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. [emphasis mine]

Justice Hugo Black began his political career in the wake of his successful defense of a Klansman who murdered a Catholic priest. The modern application of the non-Constitutional doctrine "a wall of separation between church and state" derives from Black, a former Kladd of the Klavern of the Alabama Ku Klux Klan, who used his Klan base to secure a Senate seat and ultimately an appointment on the Supreme Court.

The phrase "a wall of separation between church and state" played little role in jurisprudence until the mid-20th century. The doctrine has long played a large cultural role, preserved by pervasive anti-Catholic bigotry through organizations such as the Ku Klux Klan, and became a 'Constitutional principle' through the jurisprudence of an anti-Catholic bigot. It is used today to suppress prayer and religious expression in all public schools in the United States.

Why is it that discussions of the "separation of church and state" don't generally include the cultural and political history of the "doctrine"? Why is the central role that "separation" played in the political and judicial rise of Justice Black-- the father of modern Establishment Clause jurisprudence-- never seems to show up in New York Times Op-Ed columns or NPR's  "All Things Considered"? Ever see a press release by Americans United for Separation of Church and State note the fact that "an eternal separation of church and state" was a part of the KKK’s jurisprudential agenda and the Klansmen's Creed, and that one of those Klansmen jurists wrote the Supreme Court opinions establishing "separation of church and state" as the law under which we live?

Commenting on the Black's "wall of separation" doctrine, twogaybullies express (approvingly) the censors' view quite nicely:
Black was a former member of the Knights of the Ku Klux Klan, and a rabid anti-Catholic. He hated Catholics almost as much as I do. He once worked as defense counsel to a KKK member accused of murdering a Catholic priest. The KKK member was acquitted, thank goodness!
The term “separation of church and state” first became case law when Justice Black cited it in Everson v. Board of Education (1947). The case involved a school district that used its buses to help transport children to Catholic schools. Keep in mind that Black was a Catholic-hater of the first degree, although that certainly had no bearing on his judgment at all. Black interpreted the constitution with an eye toward Thomas Jefferson’s “Letter to the Danbury Baptists”. He plucked the phrase “separation of church and state” from Jefferson’s letter, albeit wildly out of context. Which is really odd, because Thomas Jefferson was not the author of the constitution. In fact, he had nothing to do with its text as he was serving as the US Ambassador to France at the time. But I don’t care. I like Black’s conclusion and I don’t care how he came to it.
For years, the doctrine established in Everson v. Board of Education has been used as a weapon against people of faith, and that’s great. That’s what it’s supposed to [be] used for...

Do you understand?

49 comments:

  1. So people who disagree with you are murderers, totalitarians, dictators, without morals, and now they are members of the KKK.

    I'll just copy one of the quotes in your sidebar:
    ...it is simply impossible for me to continue to believe that the "Michael Egnor" articles are being written by a real person who really believes what he (or she) writes.

    You just write bullshit to provocate and you love when people point out that you're insane.

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  2. It is really remarkable how the New Atheists systematically resort to insults when confronted with arguments they cannot counter (or understand, but I rather not go there).

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  3. It is really remarkable how the New Atheists systematically resort to insults

    You mean like comparisons with KKK, Stalin, North Korea and other totalitarians? Oh wait-

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  4. This is an awesome blog. Keep it up.

    Despite what your detractors may say, this blog makes solid arguments using evidence. It is a thinking person's blog. The commenters who don't like the blog resort to screeds fact-free screeds to denounce what they cannot debate. They can't debate it, of course, because the truth is not on their side.

    The "separation of church and state" is not in the Constitution. Wishing it into existence is not going to work. What IS in the Constitution is a prohibition against an established church, at least at the federal level. After the passage of the 14th Amendment, that would also mean that the state are prohibited from establishing state churches.

    But having a Christmas party at school is not establishing a church. A teacher wearing a cross around her neck is not establishing a church. Displaying the Ten Commandments in a courthouse is not establishing a church. Prohibiting same sex "marriage" is not establishing a church just as prohibiting polygamy is not establishing a church.

    By the way, my particular religion prohibits both. I am constantly accused of 'forcing my religion on others' in a very "unconstitutional" fashion because I maintain that marriage should consist of a man and woman. However, no one ever accuses me of 'forcing my religion' on anyone else because I oppose polygamy.

    Let's put it this way. Establishing a state church means exactly what it says. If Congress were to pass a bill declaring an official Church of the USA--much like the church of England--that would be a violation of the First Amendment.

    BEN

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  5. @Pépé , So much for the 'golden rule' eh?
    @Anon(angry)
    "So people who disagree with you are murderers, totalitarians, dictators, without morals, and now they are members of the KKK."
    Lay down with dogs...
    I think this is supposed to be a rhetorical question...I think. I would suggest that you could easily flip this little statement over and reflect on the truth of if, Anon. Allow me a rhetorical question in response:
    So, many of the people who support and have historically supported the ideas (state-atheism, positivism etc) that YOU (anon) argue for are, IN FACT, 'murderers, totalitarians, dictators, without morals'; and now you have come to learn many fellow travellers are members of the KKK.
    OUCH!

    I can see why your upset. Not the Doctor's fault, though...


    @Anon(BEN) and Mike,
    Where does the Federal government get off interfering with State Governments on this foundational issue? Who are the people in Washington to decide the religious direction of Oregonians or Texans?
    How does a 14th amendment get passed in a republic? This speaks of something that is a bit of a mystery to Canadians - this lack of regional/state power and self determination. Don't States themselves have charters/constitutions for JUST such matters? What is the point of the expense and effort of a State Government if the Federal one just pulls the strings?
    I am left confused by the whole issue.
    The only separation of Church and State I respect as realistically and as verity is "Render to Caesar the things that are Caesar's, and to God the things that are God's". That command carries weight and truth no man made contract, decree, charter, bill, treaty, or constitution could ever hope to posses.
    The other 'legal' stuff and Jefferson's (irrelevant in my view) opinions about this 'wall'?
    A naive and nobly intended exercise in self delusion: Politics.

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  6. So, many of the people who support and have historically supported the ideas (state-atheism, positivism etc) that YOU (anon) argue for are, IN FACT, 'murderers, totalitarians, dictators, without morals'; and now you have come to learn many fellow travellers are members of the KKK.
    hurrr i make up facts!!!!!

    A naive and nobly intended exercise in self delusion
    A religious guy writing this words? How ironic.

    Sorry, I cannot believe that this blog is not a parody.

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  7. Catholics v protestants. Commence the fight!

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  8. Okay, Anonymous. What fact did Crusade Rex "make up"?

    You're going to have to elaborate because I don't see it.

    BEN

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  9. Dr. Egnor, don't you know how unfair and insane, and what a parody it is to cite facts to atheists?

    How dare you, sir? How dare you?

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  10. "Jefferson played no role in the ratification of the Constitution, and his personal letters obviously have no credible bearing on Constitutional law."
    Jefferson was Madison's mentor. Madison wrote the 1st Amendment. Madison had some views. Those views don't support your contention. Instead, they support Jefferson's

    In 1962, Justice Hugo Black wrote the majority opinion in Engel v. Vitale, the landmark Establishment Clause Supreme Court decision that outlawed prayer in public schools.
    Oh, come on! That's the worst reading of EvV I've read in quite a while. In what world is "mandatory prayer" the same as "prayer"? Kids in public schools can still pray. Teachers in public schools can still pray. Teachers in public schools can't make (or appear to make) kids to pray.

    "It is used today to suppress prayer and religious expression in all public schools in the United States."
    And you still don't get it. Kids' personal expression is protected. When it become the school's expression (or becomes, in effect, the school's expression) it's not.

    "Do you understand?"
    Perfectly. Separation doesn't exist because Black, a lawyer, once sat on the team that defended E. R. Stephenson, a Methodist minister who lost his shit when his daughter married a Catholic from Puerto Rico. Why not go all the way? Everything that Thomas Jefferson did is tainted because he was a slave owner. That's worse than the Klan, isn't it? Also, Volkswagon is Hitler!

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  11. Okay Anon,
    I will list LEADERS of Atheist states:
    Lenin
    Stalin
    Mao
    Pol Pot
    Kim Il Jung (and now Kim Jung Il)
    Elias Calles

    There is just a few.
    Atheism is a view popular among the elite and powerful. State Atheism is the moral metastasis of that elitism.
    Even the detestable Robespierre, acolyte to the cult of reason and principle architect of 'The Terror' could smell the elitism the movement to advance state Atheism.
    He wrote: "Atheism is aristocratic; the idea of a great Being that watches over oppressed innocence and punishes triumphant crime is altogether popular."

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  12. crusadeREX"Where does the Federal government get off interfering with State Governments on this foundational issue? Who are the people in Washington to decide the religious direction of Oregonians or Texans? "
    The anti-Catholic schools bill that mregnor mentioned? Declared unconstitutional once it hit Federal Court on 14th Amendment grounds (and again when it hit the ScUSA) (that 'Seattle Civil Rights and Labor History Project' link that's broken above has more). When states don't defend the civil rights of their own people (historically, the Unpopular Minorities: blacks in the south, Catholics, Mormons and JWs everywhere else, with appearances by the occasional Quaker, Jew or Chinese-American), the feds do. Ideally.
    And the USA doesn't have the equivalent of the "notwithstanding clause" that Canada's got. Probably for the best, as "notwithstanding" is basically short for "notwithstanding the fact that what we're doing contravenes the Canadian constitution and Charter of rights and freedoms, we're going to do it anyway for five years, at which point we'll do it again..." nes pas?

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  13. Anon (angry) wrote:
    'Everything that Thomas Jefferson did is tainted because he was a slave owner.'
    Fine by me. Him and Madison were both NUTS in my book. Madison was a Bonepartist too.

    'That's worse than the Klan, isn't it?'
    Also, Volkswagon is Hitler!
    Ferdinand Porsche designed the VW people mover (bug). It was commissioned during the Third Reich. Hitler was not a car, he was a totalitarian dictator who enforced/promoted SOCIAL DARWINISM through a EUGENICS programs.

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  14. MO,
    Thanks for expanding.
    You wrote:
    "The anti-Catholic schools bill that mregnor mentioned? Declared unconstitutional once it hit Federal Court on 14th Amendment grounds (and again when it hit the ScUSA) (that 'Seattle Civil Rights and Labor History Project' link that's broken above has more). "
    GOOD!

    " When states don't defend the civil rights of their own people (historically, the Unpopular Minorities: blacks in the south, Catholics, Mormons and JWs everywhere else, with appearances by the occasional Quaker, Jew or Chinese-American), the feds do."
    That's a bit rich for me, MO. You would have to buy into the whole Big Brother thing to buy that. Sorry...I am far too cynical minded for that stuff- even in theory. The Feds will get involved when it PROFITS them. To protect minorities? Come on! Like the Native peoples for example? The Interred Japanese during WWII? Maybe the 'Branch Davidians' at Waco?

    "Ideally"
    Oh, I see. Not in reality.

    "And the USA doesn't have the equivalent of the "notwithstanding clause" that Canada's got.
    I am assuming you refer to section 33 of the 'Charter of Rights' which allows the courts to overturn a Federal decision in favour of the Provinces and Territories (or individuals) if the Government is deemed to have gone BEYOND the it's constitutional mandate.
    I can see that being an issue/problem.

    "Probably for the best, as "notwithstanding" is basically short for "notwithstanding the fact that what we're doing contravenes the Canadian constitution and Charter of rights and freedoms, we're going to do it anyway for five years, at
    which point we'll do it again..." nes pas?"

    N'est-ce pas.
    Just like the medical care issues, this always gets mixed up in the American media.
    The clause is designed and used to prevent the FEDS from reaching beyond their mandate. The controversy on this issue is not about time lines or what not - it is about empowering the APPOINTED judiciary to effectively write law.
    The argument AGAINST the Charter in general (and section 33 in specific) is that the judges themselves should not be able to enact law by precedent, even if the Federal government is over stepping it's bounds. At least that is how I understand it.

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  15. Here is a link on the subject, should you like to read up on it, MO.

    http://www.mapleleafweb.com/features/notwithstanding-clause-section-33-charter

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  16. crusadeREX "Fine by me. Him and Madison were both NUTS in my book. Madison was a Bonepartist too."
    Obviously. It's not like the Founding Fathers wrote the Constitution, or had reasons for writing what they wrote the way that they wrote it, or ever wrote down anything supporting their views on what they wrote, or anything.

    "Ferdinand Porsche designed the..."
    I was poking fun at your terrible argument. The Genetic Fallacy, and variants thereof, is a poor foundation.

    "Oh, I see. Not in reality."
    Reality is not ideal. As the great philosopher duo, Paula Abdul and MC Skat cat, said, "I take 2 steps forward/I take 2 steps back", except that sometimes it's more steps forward than back, and others it's the opposite, but the curve tends toward greater inclusion of Unpopular Minorities who were formerly excluded. As the alien Reverend Martin Luther Kang said, "Let us realize the arc of the moral universe is long but it bends toward justice."

    "Here is a link on the subject, should you like to read up on it, MO."
    "The Notwithstanding clause thus permits elected legislatures (federal, provincial, or territorial) to declare that a particular action or law operates 'notwithstanding' or 'in spite of' a right or freedom found in the Charter...If, for example, a legislature wishes to pass a law that will unconstitutionally violate the Charter right to freedom of expression, it can make a declaration under the clause stating that the law will continue to stand, regardless of the violation. The judiciary [temporarily], therefore, no longer has the power to force the legislature to change the law in that case" (fm your link, text in brackets mine)
    In effect, it lets legislatures flout some rights. (The USA equivalent would be an exception written in the Constitution that let States or DC ignore some sections of the Bill of Rights, but not others, and not have judicial review of such for five years)

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  17. Correction: I was poking fun at his terrible argument.*



    * One that you appear to agree with. So, in a roundabout way, I'm poking you, too.

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  18. MO,
    You wrote:
    "Obviously....anything supporting their views on what they wrote, or anything."
    I am not sure what you mean by this? Is this humour? Forgive me, it has flown over my head. Maybe it my mood or lack of sleep.

    "Reality is not ideal. As the great philosopher duo, Paula Abdul and MC Skat cat, said, "I take 2 steps forward/I take 2 steps back", alien Reverend Martin Luther Kang said, "Let us realize the arc of the moral universe is long but it bends toward justice.""
    Rev Kang is so much better in the Original Klingon.
    MLK wisdom heard recognized and understood.
    Humour aside, the record on the Feds siding with minorities is more than a little dubious. I simply do not share the Reverend's optimism. Arc? I see cycles.

    "I was poking fun at your terrible argument. The Genetic Fallacy, and variants thereof, is a poor foundation."
    Genetic Fallacy? Er...No. History is what it's called. Own it, or it will OWN you.
    As for poking fun, have at it... we could all use a laugh.

    " (The USA equivalent would be an exception written in the Constitution that let States or DC ignore some sections of the Bill of Rights, but not others, and not have judicial review of such for five years)"
    There is no US equivalent. The entire system of law and legislation is different. From assent to enactment. The Charter is not a duplicate of your Bill of Rights and has a different (if similar) mandate. The only real connection here is the matter of the rights of States or Provinces in contrast to that of their respective Federal masters. I know that Section 33 is supposed to help govern that relationship in areas of legal (charter/constitutional) conflict/overlap. I gather you understand that much too, MO. That is where the connection ends, however...and despite your excellent argument for not implementing a Canadian parliamentary charter rights amendment in the US government's legislative branch, I am left rather perplexed.
    I still do not understand how the US Federal government gets involved in High School politics or why the US taxpayer permits it...

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  19. @anon...
    You mean like comparisons with KKK, Stalin, North Korea and other totalitarians?

    No, I mean You just write bullshit... because KKK, Stalin, North Korea and other totalitarians are all Atheists!

    I am ready to hear your arguments, if any, to prove me wrong. But you will certainly insult me...

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  20. "Obviously. It's not like the Founding Fathers wrote the Constitution, or had reasons for writing what they wrote the way that they wrote it, or ever wrote down anything supporting their views on what they wrote, or anything."
    My son to the rescue!
    He suggests this is sarcasm, or what passes for it these days...
    MO, he suggests you are making a 'DUH?' Statement on relevance.
    Your approach is admirably patriotic, but foolishly arrogant. I do not view the writings of these men with same importance, awe and profundity that you do.
    Having noted that, I will excuse myself from further discussion on subject that remains mysterious to me.

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  21. Pepe,

    Please leave the internet. You are now officially too dumb for it.

    The KKK atheist?

    Vade retro morona

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  22. @troy

    You're so full of s**t I can smell you from here...

    Vade retro caca!

    ReplyDelete
  23. crusadeREX "I am not sure what you mean by this?"
    They did write the Constitution, they did have reasons for writing what they wrote the way that they wrote it, and they did write supporting their views on what they wrote.

    "Humour aside, the record on the Feds siding with minorities is more than a little dubious."
    And the states' record is worse. More of the Bill of Rights applies to the states now for a reason, and it's not because the states were too good at protecting their citizens' civil rights.

    "I simply do not share the Reverend's optimism. Arc? I see cycles."
    Black people aren't property. Women can vote. People born in America are citizens. That's a positive arc.

    "Genetic Fallacy? Er...No. History is what it's called."
    Yes, people are (and were) not perfect. That's no reason to dismiss their arguments anymore than it is a reason to take the Constitution as holy writ simply because it was written by the Founding Fathers.

    "There is no US equivalent."
    I wrote "The USA equivalent would be an exception..."

    "I still do not understand how the US Federal government gets involved in High School politics or why the US taxpayer permits it..."
    Because they aren't civil rights if they don't apply to everyone. A right, unequally applied, isn't a right. It's a privilege.

    "Your approach is admirably patriotic, but foolishly arrogant. I do not view the writings of these men with same importance, awe and profundity that you do."
    *Sigh*. All I'm saying is:
    1. Dismissing something based on its source is a logical fallacy.
    2. Understanding what statements means is best accomplished by reading what the creators of the statements (in this case Madison, the writer, and Jefferson, his mentor) wrote about and around those statements.

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  24. Dr Egnor

    If you wouldn't mind, can I give a plug to a blog to add to the demoralization of the atheists. Thanks

    http://helives.blogspot.com/

    ReplyDelete
  25. @anon:

    Great blog! I've added it to the blogroll.

    Thanks!

    Mike

    ReplyDelete
  26. Pépé:
    because KKK, Stalin, North Korea and other totalitarians are all Atheists!

    KKK. Atheists. I don't know about mregnor, but your messages have to be parodies.



    You wrote in the first comments:
    It is really remarkable how the New Atheists systematically resort to insults when confronted with arguments they cannot counter (or understand, but I rather not go there).

    And later:
    You're so full of s**t I can smell you from here...

    Vade retro caca!


    Seriously, do you even read your own messages?

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  27. A quote from Jefferson's letter to the Danbury Baptists:

    "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, & 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 separation between Church & State."

    Contrary to Egnor's dismissing this letter as a mere personal opinion, this is Jefferson EXPLAINING what the clause meant. I fail to see how one of the founding fathers, saying essentially the same thing in other words, is another sentiment entirely.

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  28. @Anon,
    "And the states' record is worse. "
    This is exactly what I mean. The States record (combined) is the Unions. A republic like the modern Union is supposed to be governed bottom up 'By the people, for the People'.

    "Black people aren't property."
    This is true. Things are better for the black folks... but how much so?
    They are free to fill the prisons and ghettos. They are free to be welfare slaves and called 'Africans'. Better than being slaves, sure.

    "Women can vote."
    And now MUST work for LESS pay than men. Strangers may raise their children, if they are not conditioned to remain childless for economic reasons.

    "People born in America are citizens."
    I understand that is an issue that is quite controversial. 'Anchor babies' are an election issue, no? I can see the problem, but I do agree this is a right that should be preserved.


    "That's a positive arc."
    Improvements, no doubt. This is a cultural peak. There will be valleys.

    "Because they aren't civil rights if they don't apply to everyone."
    Agreed, but not sure what that has to do with my question.

    "A right, unequally applied, isn't a right. It's a privilege."
    Like the right to freedom of expression, and the right to be offended by others? This obvious distinction is the reason behind my objections: The rights of the students and school (to express cultural and historic roots in the form of a 'mural') is being infringed upon by a SINGLE student who was offended by the exercise of that right. Add to the discussion this is an emotionally vulnerable girl (mum recently died etc) and the cadre of lawyers...and you see where I am going, I am sure.

    "*Sigh*."
    *Farts*

    "All I'm saying is:
    1. Dismissing something based on its source is a logical fallacy."
    All I am saying is crying 'fallacy' is like crying foul. It is expected while ever being suspect.
    Your claim that this is what associating Atheism and modern Atheist States with bloody and oppressive history is 'genetic fallacy'. You're calling foul, saying I (and other posters) are hooking, tripping. I say your diving.
    I am suggesting that the facts are still there.
    The connection is still valid.
    The shot was on goal, the refs have decided and there is no use you crying foul after the final score.
    You call my view fallacy, I call yours avoidance at best and revisionism at worst.

    "2. Understanding what statements means is best accomplished by reading what the creators of the statements (in this case Madison, the writer, and Jefferson, his mentor) wrote about and around those statements."
    It is a good means, I will agree that much. Research into ideas and writing is an important aspect of coming to understanding an individuals position within the period studied. It is not the only, or the 'best'. Nor does it always speak to their correctness or sanity. Events and deeds are the best. People talk and write all sorts of nonsense.
    They DO what they mean. Slave ownership (and 'breeding') is a insight that is JUST as valid as Jefferson's letters from France, IMO.
    The records of opponents and enemies are also invaluable. Two sides to every story.
    I understand who Madison and Jefferson were, I am aware of their relationship. I am aware of their revered status in the US version of history.
    That does not affect my opinion on their relative morality, sanity or Imperial ambitions.

    Let me clarify:
    My position is that I think allowing this brats complaint to be seen as a 'constitutional' matter BELITTLES the constitution and reduces the Federal government to the role of thought police.

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  29. **The States record (combined) is the Union's.**
    Damn teeny tiny screens >.>

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  30. Do you understand?

    Sure. I understand that lacking in any kind of legal argument, you resort to a post that is nothing more than a non-sequitur in order to distract everyone from the issue.

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  31. Like the right to freedom of expression, and the right to be offended by others? This obvious distinction is the reason behind my objections: The rights of the students and school (to express cultural and historic roots in the form of a 'mural') is being infringed upon by a SINGLE student who was offended by the exercise of that right.

    The banner isn't the expression of any student. It is an expression made by the school, and further up the chain, but the school board. The banner is a government endorsement. It violates Lemon, and the school board will lose.

    Students are free to pray all they want on school property. They just can't get the school system to mandate it or endorse it. How truly fragile is your religion if you think it needs state sanction?

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  32. Everson was decided 5-4. But if one reads the two dissents, one finds that the dissenting justices agreed with the majority concerning what the Establishment Clause meant (the "wall of separation" that Egnor is foaming at the mouth about), but thought the remedy prescribed by the majority wasn't severe enough.

    One wonders how a KKK plot garnered unanimous support from the entire U.S. Supreme Court.

    Engele v. Vitale was decided 6-1 (two justices didn't participate in the case).

    Neither of these cases were close. Neither of them relied upon Jefferson's letter, using it merely as a useful metaphor to describe their ruling. Spinning Everson as some sort of KKK plot is something fringe evangelicals like to try to do, but it ignores the fact that Black was only one of nine justices, and they all agreed that the Establishment Clause prohibited the actions being complained of in Everson.

    In addition, the idea that Black continued to adhere to the KKK line, and continued his anti-Catholic views is dubious at best. As a Senator and Justice, he was close friends with several members of the NAACP, hired Jewish and Catholic employees, and generally behaved in a manner entirely at odds with the way one would expect a practicing Klansman to.

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  33. @anon immediately above:

    The salient fact about "wall of separation" is that it was not a significant part of jurisprudence until Engele. It was a cultural icon, nourished in the fever swamps of nativism and anti-Catholic bigotry of the KKK and atheist variety.

    "Wall of separation" has a 150 year pedigree prior to 1947, and that pedigree wore a sheet.

    Still does.

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  34. crusadeREX "Improvements, no doubt. This is a cultural peak. There will be valleys."
    Allow me again to reference Paula Abdul and MC Skat cat.

    "Agreed, but not sure what that has to do with my question."
    You don't understand why the federal government gets involved in civil rights when the states fail to protect them?

    "The rights of the students and school (to express cultural and historic roots in the form of a 'mural') is being infringed upon by a SINGLE student who was offended by the exercise of that right."
    The kids can pray. The kids can put that mural in their locker. The school, representative of the state, can't be seen to endorse (or oppress) it.

    "All I am saying is crying 'fallacy' is like crying foul. It is expected while ever being suspect."
    All I am saying is that "Fine by me. Him and Madison were both NUTS in my book. Madison was a Bonepartist too." continue to be an idiotic reason to dismiss them.

    "They DO what they mean. Slave ownership (and 'breeding') is a insight that is JUST as valid as Jefferson's letters from France, IMO."
    1. Cultural blind spot.
    2. Some were pro-abolution (or had abolutionist leanings), but getting that in to the Articles of Confederation, Constitution, etc would have guaranteed no USA. The gap between them and the 13th is almost a century. Lots can change in that amount of time (heck, sit down to a family dinner and listen to your grandfather or uncle say the most horribly racist things as though it was perfectly normal. And that's just a gap of a generation or two)

    Mike Egnor "'Wall of separation'...nourished in the fever swamps of nativism and anti-Catholic bigotry of the KKK and atheist variety.'Wall of separation' has a 150 year pedigree prior to 1947, and that pedigree wore a sheet."
    Yeah! Take that, Protestant KKK!
    And take that, year 1947! Wisconsin (Weiss v. District Board 76 Wis) beat you to it by over fifty years!
    ...
    Oh.
    Wait.
    Ignore that one.
    That was a Catholic suing. (And ignore Schempp (1963), which referenced it. That was a UU. It did get combined with O'Hair, though, so there's at least one atheist there for you to smear)

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  35. The salient fact about "wall of separation" is that it was not a significant part of jurisprudence until Engele. It was a cultural icon, nourished in the fever swamps of nativism and anti-Catholic bigotry of the KKK and atheist variety.

    The salient fact about the "wall of separation" is that it was a rhetorical flair that was used to illustrate a ruling - a ruling that was in line with previous case law on the matter. The idea that it was some sort of KKK plot is a red herring that you've decided to wave about. Everson (not Engele, you can't even keep your cases straight) was unanimously decided in favor of the interpretation that the "wall of separation" language was intended to illustrate.

    Every Justice on the court, including Felix Frankfurter (very much not a KKK-sympathizer), agreed with this language:

    "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa."

    Frankfurter and the other dissenting justices dissented because the remedy proposed by the Black majority opinion didn't go far enough in their opinion. Black, supposedly champing at the bit to bash Catholics, decided that the statute in question could stand as applied because it applied equally to all religious groups. Five Justices agreed with Black on all points. Four other Justices who weren't Justice Black thought Black's reasoning was correct on the law, but thought he didn't go far enough and the statute should be struck down as excessive entanglement.

    But that doesn't fit your narrative of Black hoping to bash Catholics, so you skipped that part. Once again, since you've been forced to twist the facts to make your argument, you've ended up lying. As usual. Do you ever get tired of having to support your chosen arguments by lying? I thought you believed in some sort of objective morality. Does your morality say that lying is okay if you are lying for Jesus?

    "Wall of separation" has a 150 year pedigree prior to 1947, and that pedigree wore a sheet.

    Your arguments just get dumber and dumber. Your efforts to explain away a unanimous position decided by the Supreme Court by pointing to one justice and spinning a conspiracy story is laughably stupid. I figure if this trend continues, within a month or two you'll be reduced to little more than screams and grunts.

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  36. @anon:

    So you're arguing that "wall of separation" was not an essential doctrine of nativist, anti-Catholic, and Klan ideology?

    Are you claiming that unanimity of the opinion on the Court is evidence that "wall of separation" wasn't a code word for anti-Catholic bigotry?

    Exactly what is your "argument"?

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  37. "You don't understand why the federal government gets involved in civil rights when the states fail to protect them?"
    I don't understand why a states are FOR if they do not protect the rights of the citizen, or WHY they are called 'states' if they do not hold at least THAT much sovereignty.

    "continue to be an idiotic reason to dismiss them."
    Idiotic? If it is to be that type of convo, f**k you too, A$$hole :)

    "Cultural blind spot. "
    THAT makes some sense. If I take your meaning correctly. A little 'in your own' words stuff would be great here... one liners say so little.

    "Some were pro-abolution (or had abolutionist leanings),"
    Not the men we are discussing.

    "heck, sit down to a family dinner and listen to your grandfather or uncle say the most horribly racist things as though it was perfectly normal. And that's just a gap of a generation or two"
    I am a parent of an adult son, have another babe on the way, and am not far off being a grandparent.
    I loved my family, who are all gone now. Dad and I lived with Grandma and Granddad for most of my childhood. The folks did not sit about ranting on racial issues. There was no 'horribly racist' talk about our dinner tables. The 'horrible' talk from Granddad and grandma was about the terrible BOMBINGS and WAR they lived through as youths. Granddad was 'one of the few', an RAF officer decorated for his service - including the battle of Britain (ie the reason we speak English in NA today). My Grandfathers BOTH FOUGHT against a horribly racist regime and had no patience for racism( 'racial prejudices' or 'racialism' as it was known to him) OR positivism. My Grandmothers both did work of 'national importance' with their families and friends funerals for weekend entertainment. All this horror was courtesy of their 'Aryan Brothers' in Germany.
    Racism?
    Not my folks.
    Your right on the generation gap though.
    We have gone from stoic and tough to soft and nerdy in 3 generations.

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  38. crusadeREX "I don't understand why a states are FOR if they do not protect the rights of the citizen, or WHY they are called 'states' if they do not hold at least THAT much sovereignty."
    They did have that much sovereignty. Up until the 14th Amendment (and its Due Process Clause), they had a lot more leeway. And before the Civil War, they had even more leeway.
    They can still "experiment", but a bunch of the previous experiments' results have either been set in stone nationally, or discarded as undesirable.
    States exist primarily so that city-level politicians have someone above them to blame. And those states formed a country because the states need someone above them to blame.

    "Idiotic? If it is to be that type of convo, f**k you too, A$$hole :)"
    Dismissing a pair of Founding Fathers because, while in some ways they were ahead of the curve, in others they were products of their time is idiotic. They weren't perfect, nor omniscient. They were people. People in a time when slavery was pretty much the default and, if memory serves, wives and children were property.
    If Jefferson owned slaves now, that would be more of an issue. And not just with the slavery thing; an immortal Jefferson would be pretty off-putting all by itself.

    "THAT makes some sense. If I take your meaning correctly."
    Hindsight is 20/20. Foresight is much harder. They didn't have the advantage of living in 2011, looking back. They were stuck firmly in the 18th century. Abolitionism in the rest of the British Empire didn't see real successes for another thirty years. "Our Peculiar Institution", a term that came in to use at about that time, wasn't so peculiar during the FF's time.

    "Not the men we are discussing."
    Not those two (I doubt it's that black and white, even for Jefferson). Other FFs, yes (Adams, Hamilton. By the mid 1780s, Franklin).

    "The folks did not sit about ranting on racial issues. There was no 'horribly racist' talk about our dinner tables..."
    I must have different relatives than you (which is probably for the best, as we aren't related).
    I have an aunt, for example, who refers (or, at least, referred) to everybody from North Africa east through India as "towel heads". She's mellowed with age, though. She's also not a drunk anymore, which probably helps more than the aging. But enough about my tangled family tree...

    "We have gone from stoic and tough to soft and nerdy in 3 generations."
    Is my webcam on?

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  39. Are you claiming that unanimity of the opinion on the Court is evidence that "wall of separation" wasn't a code word for anti-Catholic bigotry?

    I'm pointing out that a collection of Justices with no links of any kind to the KKK who had very favorable opinions of religious practices agreed that this was the correct interpretation of the Constitution. Even if one were to stipulate that Hugo Black was a frothing at the mouth anti-Catholic bigot, you have failed to explain why eight other justices agreed with him and four thought he didn't go far enough.

    Your conspiracy theory concerning the foundation of the Everson decision is ludicrous when subjected to any kind of examination at all. It falls apart like the wet tissue paper it is constructed from. In short - the Everson decision was rooted in well-established Establishment Clause jurisprudence - so well-established that all nine Justices agreed with the majority opinion concerning what the clause meant.

    Hitler was opposed to abortion. Does that morally taint your opposition to abortion? Are you pro-Hitler because you are anti-abortion?

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  40. There's a saying among laywers:

    "When you have evidence, argue the evidence. When you have the law, argue the law. When you have neither, pound the table."

    This needs to be amended based upon Egnor's rants with the following addition:

    "When pounding the table doesn't work, froth at the mouth like Egnor and call your opponents Nazis."

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  41. Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of the people (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. They later buttressed this separation with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    During his presidency, Madison also vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. Separation of church and state is not a recent invention of the courts.

    The KKK-anti-Catholic smear against Justice Black is sometimes offered as an explanation for his opinion in Everson v. Board of Education--even though nothing in his opinions remotely supports that claim, all nine justices agreed on the principle that the First Amendment called for separation of church and state (so it was hardly just Black's doing), and Black led the majority of five in holding that the principle did NOT preclude state funding of transportation of students to parochial schools.

    The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

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  42. @Doug:

    1) It is unconstitutional for the president to invoke God in speeches,proclamations, etc?
    2) Is it unconstitutional for the government to recognize religious holidays (Christmas, Easter, Yom Kippur, etc)?
    3) Was Lincoln's Second Inaugural unconstitutional?
    4) Are the myriad references to God on our national monuments unconstitutional?
    5) Is the employment of military chaplains and chaplains for government functions unconstitutional?
    6) Is "In God We Trust" on our money unconstitutional?
    7) Is "under God" in the pledge unconstitutional? Was it unconstitutional when Lincoln said it at Gettysburg?
    8) Is the National Day of Prayer unconstitutional? In a presidential request that Americans pray for our country, soldiers, etc
    unconstitutional?

    Let's see how your Klan-vetted jurisprudence applies to real issues.

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  43. @Doug:

    [Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.]

    Our government isn't "secular". Our government is saturated with religion, daily, everywhere. Government officials make decisions based on personal beliefs, government officials constantly invoke God and prayer in speeches, voters base votes on religious principles, and major transformations of American law are driven by explicitly religious people from explicitly religious institutions using explicitly religious reasoning )Rev MLK from Ebenezer Baptist Church who wrote the Letter from the Birmingham Jail, among countless others)

    The Constitution prohibits an Establishment of Religion. Period. Your effort to expunge Christianity from American life is disgusting and deeply dishonest, and a lot of people are fighting back.

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  44. I'm not sure what you have in mind by "secular," but I meant that the Constitution founds the government on the power of the people rather than god(s) and keeps its separate, in some measure at least, from religion.

    It is important to distinguish between the "public square" and "government" and between "individual" and "government" speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square--far from it. Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise and express his or her religious views--publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment's constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

    Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

    Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. It also answers most of your numbered questions. I commend it to you. http://tiny.cc/6nnnx

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  45. The government's inscription of the phrase "In God we trust" on coins and currency, as well as its addition of the words "under God" to the pledge of allegiance in 1954 and adoption of the phrase "In God we trust" as a national motto in 1956, were mistakes, which should be corrected. Under our Constitution, the government has no business proclaiming that "we trust" "In God." Some of us do, and some of us don't; each of us enjoys the freedom to make that choice; the government does not and should not purport to speak for us in this regard. Nor does the government have any business calling on its citizens to voice affirmation of a god in any circumstances, let alone in the very pledge the government prescribes for affirming allegiance to the country. The unnecessary insertion of an affirmation of a god in the pledge puts atheists and other nonbelievers in a Catch 22: Either recite the pledge with rank hypocrisy or accept exclusion from one of the basic rituals of citizenship enjoyed by all other citizens. The government has no business forcing citizens to this choice on religious grounds, and it certainly has no business assembling citizens' children in public schools and prescribing their recitation of the pledge--affirmation of a god and all--as a daily routine.

    But that's just me talking. The courts, on the other hand, have sometimes found ways to excuse such things, for instance with the explanation that they are more about acknowledging tradition than promoting religion per se. Draining the government's nominally religious statements or actions of religious meaning (or at least purporting to do so) and discounting them as non-religious ritual--sometimes dubbed "ceremonial deism"--is one way to find them not to conflict with the First Amendment. Ordinary folks, though, commonly see things differently; when they read "[i]n God we trust," they think the Government is actually declaring that "we" as a people actually "trust" the actual "God" they believe in. If they understood it as merely a ritualistic phrase devoid of religious meaning, they would hardly get as exercised as they do about proposals to drop it. As you can imagine, those more interested in championing their religion than the constitutional principle of separation of church and state sometimes seek to exploit and expand such "exceptions" even if it requires they fake interest only in tradition.

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  46. @doug:

    Thank you for your reasoned comments. I disagree with many of your assertions, but it's refreshing to have a discussion with someone who makes a coherent argument.

    Your comments warrant a post, and I'll have it up on Monday.

    Thanks again.

    Mike

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  47. [Thank you for your reasoned comments. I disagree with many of your assertions, but it's refreshing to have a discussion with someone who makes a coherent argument. ]

    It's not like the rest of us can't make a coherent argument. It's just that we've given up on making them. What's the point? You can't muster anything in response and simply repeat your tired talking points. I stick around for laughs.

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