Thursday, June 12, 2014

The Constitutional separation of church and state

Atheist attorney Doug Indeap, with my commentary:

Doug:
You observe that the Constitution founds the government on the power of the people and says nothing about god(s), but fail to recognize that that is a reflection of the very separation of church and state you otherwise deny. As I said earlier (and you largely ignore in your post), 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. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion 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.

You misrepresent the Founders motives for the Establishment Clause and the near silence of the Constitution on religion at the federal level. The clear intent was to prevent the federal government from interfering in religious expression. The American people were (and are) deeply religious, and most of the states had de jure or de facto extablished churches, and the Founders were intent on ensuring that freedom of religious expression was protected. There was obviously no intent to prevent government officials from invoking God, or in any way suppressing religious speech, either for government officials or for private citizens.

Here is President George Washington's Thanksgiving Proclamation, issued in part to give God thanks for... the Constitution:

WHEREAS it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favour; and Whereas both Houses of Congress have, by their joint committee, requested me "to recommend to the people of the United States a DAY OF PUBLICK THANSGIVING and PRAYER, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness:"
Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to thethe service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed;-- for the peaceable and rational manner in which we have been enable to establish Constitutions of government for our sasety and happiness, and particularly the national one now lately instituted;-- for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge;-- and, in general, for all the great and various favours which He has been pleased to confer upon us.

And also, that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions;-- to enable us all, whether in publick or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shewn kindness unto us); and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as he alone knows to be best.

GIVEN under my hand, at the city of New-York, the third day of October, in the year of our Lord, one thousand seven hundred and eighty-nine.

(signed) G. Washington
A similar God-full Thanksgiving Proclamation was issued by Washington in his second term, two by President Adams, and two by President Madison. Jefferson declined, and Lincoln was the next, with similar proclamations thanking God issued by every president since.

Here are the eight Proclamations thanking God issued by the Contenential Congress from 1777 to 1784.

Doug's argument that the Framers intended to enjoin religious expression by government officials is piffle. In fact, the founders celebrated the Constitution and the founding of the nation with repeated government issued prayers and the passionate invocation of God's blessings.

The constitutional wall of separation between church and state is a rhetorical fiction employed by anti-Christian (and often anti-Catholic) bigots to expunge Christianity from the public square. It is a deep violation of the text and the spirit of the Constitution, which prohibits an Establishment of Religion explicitly to preserve the Free Exercise of religion.

Anti-Christian bigots have been using federal power-- a power specifically denied them in the Free Exercise clause-- to censor religious expression in schools, in courthouses and public buildings, and on public property. The goal is obviously not to protect religious expression but to extinguish it.

In place of genuine free religious expression, only secularism-- anodyne atheism-- will remain, the Establishment of which is the obvious goal of the anti-Christian/anti-Catholic bigots who assault religious exercise in every venue that will have them. 

21 comments:

  1. Commissar Boggs, Ministry of TruthJune 12, 2014 at 7:50 AM

    "Doug Indeap" is a well-known atheist troll, not a licensed attorney. If further evidence is required beyond the prima facie evidence of his comments, a quick check of the standard Martindale-Hubble Law Directory will establish this fact.

    While there are many interesting individuals who participate in Web discussions, yet prefer for reasons of privacy to keep their identities hidden from public view, trolls are a different breed.

    Trolls use the "anonymity" of websites to try and establish imaginary personas and biographies in an effort to add authority and gravitas to opinions that would otherwise be discounted as "just another opinion". But they have the good sense to know where this works and where it does not work.

    That is why you will never see the comments of "Doug Indeap" following a post by William Jacobson, Johnathan Turley, Ann Althouse, or the Wall St Journal Law Blog.

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  2. Commissar Boggs, Ministry of TruthJune 12, 2014 at 8:23 AM

    Smart Power Update™:

    Al-Qaeda has taken Mosul, Iraq's second largest city, and has seized an unknown quantity of American-made materiel and weaponry (possibly including one or more Blackhawk helicopters) following a disorganized exodus of courageous and devout Iraqi troops fleeing and shedding their uniforms in the face of an enemy animated by the beneficence of Allah.

    Mass beheadings are being reported and refugees are pouring out of the city.

    The Turks are whining and begging for NATO protection, and the prospects of oil company stocks are looking up.

    Looks like Secretary "Lurch" Kerry and President Bimbeaux McLightworker are going to have a lot of fun in the near future.

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  3. Egnor, spot on as usual. A secular government is an atheist government, literally no different than that of the former USSR and every other atheist-dominant system. Separation of church and state (in the Declaration of Independence, not the Constitution) means that the state cannot endorse or establish a religion -- nothing more. It is not a bludgeon to silence religious expression, as the secularists routinely (intentionally) misinterpret. Our First Amendment rights do not cease to exist upon entering into a school, business or anywhere else.

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  4. The only religious expression being silenced by the separation of church and state is the religious expression of our government. It should be obvious to everyone with even an iota of common sense that when the government is allowed to express religious opinions and preferences we have less religious liberty, not more. Christians are being disingenuous; they don’t want liberty, they want hegemony.

    -KW

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    1. What a load of bull. Secular activists routinely attack religious expression both inside and outside of government. It's become their modus operandi. More like atheists are the ones who want a hegemony so that they can institutionalize yet another godless communist regime and eliminate religion. The only difference is that now they try to word their humanist manifestos in a more deceptive manner in order to give the illusion that they're interested in working for 'human rights' and for 'the greater good'. They want power.

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    2. Citizen Boggs, Committee of General SecurityJune 12, 2014 at 10:07 AM

      Popito: "they don’t want liberty, they want hegemony."

      You don't want freedom. You hate freedom. You hate white people. You're a racist. You hate America. You want power.

      We know what you want, sailor-boy. We know.

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    3. Commissar Boggs, Ministry of TruthJune 12, 2014 at 10:20 AM

      Michael: "What a load of bull"

      Just routine trolling. It's what trolls do. It substitutes for a social life. You know, when they aren't knocking a few back with their Navy SEAL friends. :-)

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    4. Commissar Boggs, Ministry of TruthJune 12, 2014 at 10:23 AM

      Michael: "What a load of bull"

      It's just trolling. That's what trolls do. They need a substitute for a social life. You know, when they aren't knocking a few back with their Navy SEAL buddies. :-)

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    5. There are very few employers that would allow their employees the kind of free religious expression that you’re demanding the government allows its employees and elected representatives. A purchaser that habitually insists on leading vendors in prayer or a program manager that insists every meeting start with a prayer probably wouldn’t last long in any place I’ve ever worked because it’s rude, presumptuous, a waste of time, and prone to cause unnecessary and avoidable conflicts. Yet I never hear anyone complaining about the giant business atheist plot to eliminate religion. Why is that?

      Businesses limit the religious speech of their employees because they don’t want to alienate any of their employees, customers, vendors, or business partners. It’s a no-brainer. Staying out of religion is good for government for the same reasons it’s good for business.

      -KW

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    6. "There are very few employers that would allow their employees the kind of free religious expression that you’re demanding the government allows its employees and elected representatives."

      I didn't know that I was "demanding" anything. The Constitution is quite clear on the matter.

      "Businesses limit the religious speech of their employees because they don’t want to alienate any of their employees, customers, vendors, or business partners. It’s a no-brainer. Staying out of religion is good for government for the same reasons it’s good for business."

      Both business owners and employees are being targeted, harassed, litigated and pressured into early retirement for their beliefs. This is the result of PC indoctrination, wrought from secularism and it's fascist to the core. Their crusade for so-called equal rights is a farce; what they're really after is a monopoly of ownership. That way, they can pursue their anti-Christian agenda unfettered, purging any dissidents from the ranks (for thought crime), just as they did in the former USSR. You're fooling nobody.

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    7. “I didn't know that I was "demanding" anything. The Constitution is quite clear on the matter.”

      Really!? Please show me where in the constitution it says the government has the right to lead sectarian prayers and establish religious monuments. If the constitution was as clear as you say it is we wouldn’t be having this discussion.

      The wall of separation has been part of American jurisprudence for about 150 years, ever since the Supreme Court looked back on the founders writings to determine what they intended by the establishment clause, and citing Jefferson’s separation letter to the Danbury Baptists, proclaimed "coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured."

      In the past Christians where much more accepting of the wall of separation because the religious division in this country wasn’t framed as Christians vs. everybody else as it is now; it was Mainline Protestant vs. Evangelical, vs. Catholic etc., with no one group having an overwhelming majority. Under those circumstances most everyone was happy to have the government stay out of what was primarily seen as divisions among Christians because everyone with the possible exception of Mainline Protestants saw themselves as religious minorities. It’s only been in the past 40 years or so that Christians have united together under the Christian banner to form a unified majority with the political power and will to tear down the wall of separation.

      You see Christianity under assault. I get it. What you don’t appreciate is that getting Christianity in bed with government isn’t going to help. It will hurt Government and Religion. You may find this hard to believe because of your cartoonish view of atheism, but I have nothing against Christians. Please feel free to practice your religion as you see fit. I’ll I’m asking is that you don’t use the power of government to force your religion on me. I don’t want to go to a town meeting and have to choose between bowing my head to your God against my beliefs or alienating the clearly religious government officials I am there to petition.

      -KW

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    8. “Both business owners and employees are being targeted, harassed, litigated and pressured into early retirement for their beliefs.”

      Bullshit. Anyone can believe whatever they want. Its actions and behaviors are that cause trouble at work. If I where to go on and on about the Flying Spaghetti Monster at work to the point it became disruptive I would expect negative consequences.

      -KW

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    9. "Really!? Please show me where in the constitution it says the government has the right to lead sectarian prayers and establish religious monuments. If the constitution was as clear as you say it is we wouldn’t be having this discussion."

      Show me where it says that it can't.

      "You see Christianity under assault. I get it. What you don’t appreciate is that getting Christianity in bed with government isn’t going to help. It will hurt Government and Religion."

      Again, I never said anything about wanting government to unite with religion.

      "[A]ll I’m asking is that you don’t use the power of government to force your religion on me. I don’t want to go to a town meeting and have to choose between bowing my head to your God against my beliefs or alienating the clearly religious government officials I am there to petition."

      Show me a single instance where an atheist was forced to bow their head and pray.

      "Bullshit. Anyone can believe whatever they want. Its actions and behaviors are that cause trouble at work. If I where to go on and on about the Flying Spaghetti Monster at work to the point it became disruptive I would expect negative consequences."

      No, see, we have this thing called the First Amendment of the Constitution which clearly protects religious expression ...it doesn't matter whether you or anyone else take exception.

      Brendan Eich wasn't "becoming disruptive," as you alleged; he was the target of a progressive corporate witch hunt, brought about first by the IRS leaking the Prop 8 donor list to LGBT activists and then OKCupid protesting his employment at Mozilla because they were "offended." The only mistake Eich made was resigning of his own volition, albeit after being pressured to - he should've forced them to do their own dirty work.

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    10. “No, see, we have this thing called the First Amendment of the Constitution which clearly protects religious expression ...it doesn't matter whether you or anyone else take exception.”

      That’s ridiculous! While it’s true our speech and expression is protected, that doesn’t mean we’re not allowed to react to what people say and do. Say and do what you want, just don’t think that the first amendment is somehow going to magically protect you from the consequences of your actions.

      Eich’s resignation is a great example. He “became disruptive” because he took action that undermined the support of his employees. If you want to be the CEO of a Bay Area tech company, it’s probably not a good idea to be contributing support to an anti-gay ballot initiative that your employees overwhelmingly oppose. He himself said "under the present circumstances, I cannot be an effective leader." If you’re pissed that OKCupid protested and threatened a boycott, too bad, they have free speech rights as well.

      -KW

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    11. "That’s ridiculous! While it’s true our speech and expression is protected, that doesn’t mean we’re not allowed to react to what people say and do. Say and do what you want, just don’t think that the first amendment is somehow going to magically protect you from the consequences of your actions."

      Since we're on the subject, what actions qualify for consequences?

      "Eich’s resignation is a great example. He “became disruptive” because he took action that undermined the support of his employees. If you want to be the CEO of a Bay Area tech company, it’s probably not a good idea to be contributing support to an anti-gay ballot initiative that your employees overwhelmingly oppose."

      Red herring. 52% of California voted against SS'M. Should those same 52% be punished for their views? Do they need to be approved by the PC fascists? Eich did nothing to "become disruptive"; the PC fascists over at OKCupid were the cause of the turmoil. I don't think you'd like it very much if you were forced into early retirement for being an atheist.

      "He himself said "under the present circumstances, I cannot be an effective leader." If you’re pissed that OKCupid protested and threatened a boycott, too bad, they have free speech rights as well."

      Like I said, Eich cowered under pressure from the PC fascists. What they fear most is to go up against people with the courage to fight for their convictions. Apparently you believe that only one side is entitled to freedom, that people should be pressured into losing their jobs on account of insecure goo-goo baby liberals whining about someone's personal political views.

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  5. Are these words unconstitutional to be spoken by government officials -- "endowed by their Creator with certain unalienable rights?" Or these -- "appealing to the Supreme Judge of the world?" Or these -- "a firm reliance on the protection of Divine Providence?" Or these -- "done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord?"

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  6. 1. I appreciate your thoughtful, if much delayed, response to my comment.

    While you persist in your view that the separation of church and state is a fiction, it is telling I think that you tacitly acknowledge (by your silence) the several aspects of the Constitution that I described. Those aspects reveal and reflect the separation you deny.

    You assert that the founders’ intent was to prevent the federal government from interfering in religious expression. We agree on that much. The primary purpose of the First Amendment religion clauses is to protect individuals' religious freedom. The free-exercise clause does this directly by constraining the government from prohibiting individuals from freely exercising their religions. The establishment clause does this indirectly by constraining government from promoting or otherwise taking steps to establish any religion, thus assuring that individuals are free to exercise their religions without fearing the government will favor the religions of others and thus disfavor theirs.

    You go astray, though, in further asserting that “[t]here was obviously no intent to prevent government officials from invoking God, or in any way suppressing religious speech, either for government officials or for private citizens.” Au contraire. It is important to distinguish between "individual" and "government" speech about religion. The constitutional principle of separation of church and state does not, as often is complained, 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, 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.

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  7. 2. It should not be supposed that the government, by remaining separate from and neutral toward religion in keeping with the Constitution, somehow thereby favors atheism over theism. There is a difference between the government (1) remaining neutral in matters of religion and leaving individuals free to choose, exercise, and express their religious views without government intrusion and (2) taking sides in matters of religion and promoting one view (whether theism [in one, any, or all its various forms], atheism, or whatever) to the detriment of others. It is one thing for the government to endorse the idea that god(s) exist or, alternatively, endorse the idea that god(s) do not exist; it is quite another for the government to take no position on the matter and respect the right of each individual to freely decide for himself.

    You make much of some presidential proclamations. All in all, as one would expect, the available historical evidence does not all point in the same direction. For instance, while Washington offered Thanksgiving proclamations as you note, seemingly seeing no problem in that, Jefferson refrained from issuing any such proclamations for the very reason he thought the Constitution precluded it. Madison too preferred not to issue any such proclamations, but upon being requested by Congress to do so, reluctantly issued one, though taking pains to word it so as merely to encourage those so inclined to celebrate the day. He later almost sheepishly acknowledged that had been a mistake. Also, Congress appointed chaplains for the two houses of the legislature and for the army and navy.

    Historical evidence of this sort can be seen in at least two ways. On one hand, some of it can be seen, as you seemingly urge, as evidence that the founders considered the government's actions to conform to the Constitution, thus indicating they did not intend the Constitution to prevent the government from taking actions of that sort with respect to religion. On the other hand, it can be seen as examples of early mistakes by Congress and the Executive, where they failed to conform to the Constitution. Mistakes of that sort are hardly unexpected or unusual. Recall that Congress made two other similar mistakes during Madison's presidency, resulting in his vetoes of 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. The government has made many such mistakes during our history, and continues to make them to this day.

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  8. 3. Madison discussed just this point in his Detached Memoranda. As it happens, he not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question of what to make of the government’s actions doing just that. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].” Basically, he recognized that because too many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

    In any event, the very fact that evidence and arguments can be advanced in support of both "sides" of issues like this is one of the reasons we have courts and call on them to resolve such issues. In this instance, the Supreme Court has done just that--decisively, authoritatively, and, in the most important respects, unanimously. In its jurisprudence, the Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to the appointment of chaplains for the house of Congress and army and navy and the issuance of religious proclamations, as well as various governmental statements or actions about religion on one or another theory, e.g., longstanding tradition or ceremonial deism. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).

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  9. While I appreciate the effort, Doug, it's completely wasted here. Egnor is a partisan shill who exhibits no reasoning power. He is surrounded by fanboys who can barely construct coherent sentences and usually prefer to use their own private terminology, while veering wildly off the topic at hand. You'd be better served by giving a talk in front of wombats. At least the wombats would be interesting to look at.

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  10. I read ages ago that if a lawyer can not hold a brief in 3 sentences, the lawyer will surely lose the case.

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