Michael Newdow – Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics?
Dr. Michael Newdow, an attorney and physician famous for his litigation on church-state issues from an atheist perspective, and and previous article contributor to ReligiousLiberty.TV, has now published an important law review article for the Capital University Law Review that discusses the history of American religious freedom and tolerance and why the majority should carefully consider the rights of the minority. Although one might disagree with his religious viewpoint, Newdow argues for people to be treated equally, regardless of what religious viewpoint they hold.
Here is an excerpt:
In reviewing the history of the religion clauses of the Constitution, onecan take two paths. One supports the basic ideal underlying ourconstitutional framework: equality, which is inclusive and is based onrespect for all religious opinions. The other leads to exclusion byadvocating for one or more non-universal religious views. The first reflects the Framers’ goals for guaranteeing liberty to all. The other guarantees liberty only to those who muster the political might to use the state’s machinery to advocate for their religious beliefs. The first exists to protect every individual. The other focuses on the fact that the white, male, property-owning Framers believed in God, and thus concludes thatthe magnificent document they created “permits the disregard” of religious minorities with alternative beliefs.
Why would anyone choose that latter path? Why go out of the way to“permit the disregard” of a minority when such a notion is nowhere to be found within the text of the Constitution, and a historical reading can as readily and more nobly support the equality principle? What sort of American patriot, citizen, or public servant would work towards such an end?”
The entire article, which is well worth reading, is available in PDF format for free download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594374 (Click on “One-Click Download” once you follow this link to download the entire document for free.)
ACADEMIC ABSTRACT:
In June 2005, Justice Antonin Scalia contended that ‘the Establishment Clause…permits the disregard of devout atheists.’ This statement is extraordinary inasmuch as it appears to reverse an inexorable (albeit, at times, wandering) trend toward true equality. Thus, where individuals had previously been treated as less than equal on the basis of race (e.g., Dred Scott v. Sandford), gender (e.g., Bradwell v. State) and national origin (e.g., Korematsu v. United States), those odious decisions are no longer good law. In his McCreary dissent, it seems that Justice Scalia sought motion in the opposite direction: toward overturning equality, in the one constitutional arena where the Supreme Court had not previously proclaimed such a manifest animus toward minorities: religion.
This article takes three approaches in considering the Justice’s argument. First, recognizing that Justice Scalia prides himself on being a ‘textualist,’ it considers the Establishment Clause’s text (‘Congress shall make no law respecting an establishment of religion’). Next, because Justice Scalia, in McCreary, used specific historical events to support his thesis, those events are analyzed to see if they were selected in a fair manner, and if they really stand for the proposition he claims.
Finally, in Part III, Justice Scalia’s brand of analysis is applied to his own Catholicism. It is shown that the United States of America was born of a literal hatred for Catholics, which was pervasive and persistent. One may well conclude, therefore, that under his approach, the Establishment Clause permits the disregard of his own religion.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594374 (Click on “One-Click Download” once you follow this link to download the entire document.)
Civil Rights Pioneer E.E. Cleveland talks about meeting Martin Luther King, Jr.
On August 30, 2009, renowned evangelist Edward Earl Cleveland died at Huntsville Hospital in Huntsville, Alabama. He was 88. Cleveland worked for more than 60 years as a Seventh-day Adventist pastor, evangelist, church leader, teacher, and civil rights leader.
Dr. Martin Luther King Jr. attended one of Cleveland’s tent meetings in 1954 in Montgomery and the two created a lasting friendship. Also in attendance for at least one night of the meetings were local seamstress, Rosa Parks and the Rev. Ralph David Abernathy.
Cleveland marched in several civil rights marches, including the March on Washington. Cleveland describes his involvement in the civil rights movement in a sermon he delivered during Black History Month on February 11, 2006.
E. E. Cleveland – Black History Month 02-11-06 @ Yahoo!7 Video
Tight California Prop. 8 race closely watched (AP)
AP – Five months and thousands of weddings after California’s highest court sanctioned same-sex marriage, anxious eyes around the nation will closely follow voters Tuesday as they decide whether to turn back the clock.
Given the state’s size and influence, the vote on a constitutional amendment banning gay marriage has become a referendum on sexual orientation and civil rights. Both sides call it the Gettysburg of the power struggle between the gay rights movement and the Christian right, with the victors capturing momentum in other states.
The race has tightened over the past six weeks and is expected to be close. A Field Poll released Friday found 49 percent of likely voters oppose the ban and 44 percent favor it. In mid-September, the measure was losing by 17 points.
OPINION: Gay Rights and Religious Liberty (Los Angeles Times)
The Los Angeles Times today published an article by Marc D. Stern of the American Jewish Congress describing the impact that gay marriage might have on religious organizations. A link follows these excerpts:
In its controversial decision, the [California Supreme Court] insisted that these same-sex marriages would not “diminish any other person’s constitutional rights” or “impinge upon the religious freedom of any religious organization, official or any other person.” Religious liberty would be unaffected, the chief justice wrote, because no member of the clergy would be compelled to officiate at a same-sex ceremony and no church could be compelled to change its policies or practices.
And yet there is substantial reason to believe that these assurances about the safety of religious liberty are either wrong or reflect a cramped view of religion.
Stern then describes examples where religious rights and gay rights sometimes come into conflict, including the fertility clinic case. Stern concludes:
Given the array of church views on homosexuality, and the number of secular organizations offering social services to same-sex couples, allowing religious groups opposed to same-sex marriage to put that opposition into practice beyond the sanctuary is not likely to often seriously impede anyone.
Concurring in the May 15 California marriage judgment, Justice Joyce L. Kennard observed that the court’s most important role was to preserve constitutional rights “from obliteration by the majority.”
If past rulings are any guide, it is religious rights that are likely to be “obliterated” by an emerging popular majority supporting same-sex relationships — and it seems unlikely that the California courts will intervene. That’s a shame.
Read the full article at http://www.latimes.com/news/printedition/opinion/la-oe-stern17-2008jun17,0,6772243.story
Civil Justice Degrees Guide Identifies Top 100 Civil Liberties Advocacy Blogs
http://www.criminaljusticedegreesguide.com/library/the-top-100-civil-liberties-advocate-blogs.html
Among the blogs are several dealing with religion, politics, and related topics.
Religion
These bloggers are committed to fighting religious discrimination by informing the public of their right to practice their religion around the world.
- Religion News Blog: Religion News Blog is a great resource for finding quality information about religious rights and freedoms, cult issues and the presence of religion in politics.
- Religion Clause: Howard M. Friedman, Professor of Law Emeritus at the University of Toledo blogs about religious rights and how government interferes with religion in countries all over the world.
- FaithWorld: Reuters’ religion and ethics blog reports on all the news about religion, religious freedom, and religion and politics.
- Inspired Faith, Effective Action: This blog is associated with the Unitarian Universalist Association of Congregations and features posts about social justice, peace, environmental issues, racial justice, women’s rights and a lot more.
- Dalit Freedom Network: Blogs written on this site tackle arranged marriages, religious and cultural discrimination, religious conversions and other issues affecting this population in India.
- Military Religious Freedom: Though this blog is no longer active, it contains enlightening posts about discrimination, crusading Christians and other religious issues in the U.S. military.
- The Center Blog: The Center Blog comes from the Center for Law and Religious Freedom at The Advocacy Ministry of the Christian Legal Society. Read about court cases and dialogues involving Christian doctrine and culture.
- Apostasy and Islam: This blog follows the recent campaign of Muslims to “affirm the Freedom of Faith.” Read all about the campaign in this blog, which also connects readers to resources about Islam, religious freedom and Muslim culture.
- The Liberty Blog: The Liberty Blog is published by the North American Religious Liberty Association, and posts discuss the free exercise of religion, U.S. rulings and laws that affect religion, religion and health, and other related topics.
- Religion and Society: This blogger tries to understand how religion fits into contemporary culture and politics.
Constitutional Issues and Supreme Court
These analytical blogs will help you get summaries of Supreme Court rulings and dig deeper into the Constitution so that you can more effectively participate in the debate about civil liberties.
- Brad’s Weekly Constitution Blog: Brad writes to defend “the original intent of the Constitution.” Even if you don’t agree with his stance, you can browse categories like immigration, religion, the Second Amendment and the U.N. to get a better understanding of Constitutional issues.
- Wait a Second!: This blog reports back to its readers about “the civil rights opinions of the United States Court of Appeals for the Second Circuit,” including rulings on discrimination.
- American Constitution Society Blog: Recent posts from this blog include “Due Process for Immigrants” and “Human Rights First Report on Terrorism and the Court System.”
- Free Constitution: Read about all kinds of civil liberties issues, freedom breaches and legislations here.
- SCOTUS Blog: Get the latest updates on Supreme Court cases and rulings from this blog.
- U.S. Supreme Court Blog: In this unofficial blog, posts discuss civil liberties rulings affecting children, jury selection and more.
- Supreme Court and U.S. Politics: Get summaries of opinions passed by Supreme Court Justices here.
- Progressive Liberty Blog: This blog aims to educate readers about Constitutional issues, American freedoms and more.
- The Populist Party Blog: This is “where the people rule,” and bloggers post about civil liberties and the demand for basic rights and protection.
- Liberty’s Blog: This blog is written by a “Texas Yankee” who writes about American equality and liberty.
Government, Religion, and a Mythical Past
By Karen Scott, Walt Pontynen, and Leigh Johnson
In this article, originally published in Spectrum in 2002, the authors discuss the intent of the founders of the United States and how historical revisionism obscures our national heritage. (Re-posted with Permission.)
AMERICAN PHILOSOPHER and poet George Santayana (1863-1952) wrote, “Those who cannot remember the past are condemned to repeat it.”1 Unfortunately, from the highest offices (both elected and appointed) to the lowliest voter, the reaction of Americans to the Ninth Circuit Court’s decision in the Pledge of Allegiance case indicates that Americans are condemned to repeat the horrors of the Dark Ages.
Many, in attacking the Ninth Circuit Court’s decision, rest their case on the myth that separation of church and state in the United States is the product of modern secularists. They attack a string of decisions handed down by the U.S. Supreme Court since the 1960s. They misuse and misinterpret the Founding Fathers2 who supposedly saw government promotion of Judeo-Christian values as necessary for the survival of the Republic.
However, the record is clear: despite their own personal piety, those who successfully argued for ratification of the First Amendment did not see government as the appropriate avenue for promoting those religious beliefs. They recognized that coercion, the essence of civil government, in matters of conscience is repugnant.
The Founding Fathers were clearly against the formation of the United States being founded on any religion, Christian or otherwise. For example, in 1796 the administration of George Washington negotiated a treaty with Tripoli that the US Senate ratified – unanimously – the following year at the request of President John Adams. The treaty denied that the U.S. government was founded on Christianity, reading in part:
As the Government of the United States of America is not in any sense founded on the Christian Religion: as it has in itself no character of enmity against the laws, religion, or tranquility of Musselmen [Moslems]; and as the said states never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties, that no pretext arising from religious opinion shall ever produce an interruption of the harmony existing between the two countries.3
Washington, Adams, and members of the U.S. Senate were not alone. The United States Constitution itself verifies that the United States is not “founded on the Christian Religion.” One searches in vain through the U.S. Constitution, which encapsulates the thinking of the Founders and provides the framework for national government, for wording that the United States is based on Christianity. Indeed, it makes no mention of God at all. In an era when European monarchs routinely claimed a divine right to rule, the point was obvious. In the United States, authority derives not from any church or religious creed, or from God, but from “the people” – as the preamble to the Constitution plainly states.
So sensitive were the Founders to the danger of pressuring consciences that out of deference to Quaker beliefs they included a provision in the Constitution for Quaker officeholders to “affirm” rather than “swear” their oaths of office. In addition, they forbade any test of religion for holders of federal office. The U.S. Constitution is blind to the religion of its civil servants—whether Catholic, Buddhist, Latter-day Saint, Seventh-day Adventist, Baptist, Methodist, or atheist.
However, the American tradition of strict separation between church and state goes back much further in time than the framers and the Constitution. Its parent was not a liberal, secularist, U.S. Supreme Court, nor an anti-Catholic bigot,4 as some have recently suggested. The tradition even predates Thomas Jefferson, who customarily gets credit for coining the term “wall of separation.”
Its originator was Roger Williams, a devout Christian who lived in the seventeenth century. So devoted was Williams to God that his contemporaries described him as “God-intoxicated.” Williams was a Puritan clergyman who emigrated from England to Massachusetts Bay Colony in the 1630s. He spoke his piece, which disagreed with religious authorities in the colony, went on trial for unorthodox views, and was forced to flee for his life in the dead of winter.
The colony that Williams established in 1636, Rhode Island, is the stuff of legend. Unlike Massachusetts, whose religious establishment had a reputation for whipping, banishing, and hanging religious dissenters, including Quakers and Baptists, Rhode Island extended full religious freedom to everyone, including Catholics, Jews, Muslims, and atheists. The colony had no religious taxes, no church establishment, and no religious tests for office holding. It even exempted nonbelievers from swearing the oath “so help me God,” which, in Williams’ view, would have been meaningless to them and contrary to God’s ways.
Williams believed that God communicates with humans by working on people’s hearts through the Holy Spirit. Thus, even the slightest coercion that interfered with that process displeased God. “Rape of the soul” was the term Williams used to describe forcing people who did not believe in God to observe and participate in religious rituals.5
To Williams, “a wall or hedge of separation” was needed to guard between “the Garden of the Church and the Wilderness of the world.”6 As a result, Rhode Island’s charter guaranteed “full liberty in religious concernments,” and the colony thrived from a diversity of religions. Later, nearly identical wording cropped up in the colonial charters of Pennsylvania, New Jersey and Carolina.
During the American Revolution, Williams’ view of separation between church and state was revitalized and expanded by Baptist Ministers Isaac Backus and John Leland, spokesmen for the fastest growing denomination in the United States at that time, whose activism played no small part in ratification of the First Amendment. Government and religion, Backus warned in 1773, “Are distinct in their nature and ought never to be confounded together.”7
Alexis de Tocqueville was a young French traveler who visited the United States in the 1830s. He wrote in the introduction to his book Democracy in America, “One cannot establish the reign of liberty without that of mores, and mores cannot be firmly founded without beliefs.” This statement is often quoted today by those who tout that the separation of church and state is a myth. What is not quoted from the same book is de Tocqueville’s statement that religion “realizes its sway is all the better established because it relies only on its own powers and rules men’s hearts without external support.”8
Those who have either forgotten why our Founding Fathers erected a wall of separation of church and state or who refuse to acknowledge our history also fail to quote de Tocqueville’s observation that on questioning the “faithful of all communions,” including clergymen, especially Roman Catholic priests, de Tocqueville found that:
“They all agreed with each other except about details; all thought that the main reason for the quiet sway of religion over their country was the complete separation of church and state. I have no hesitation in stating that throughout my stay in America I met nobody, lay or cleric, who did not agree about that.”9
The high wall of separation between church and state is not the creation of a twentieth-century, liberal, anti-Catholic, secularist U.S. Supreme Court. Rather, it is the creation of a devout and godly seventeenth-century Christian and is an American tradition since the founding of the Republic. History has proven Roger Williams right: religion retains its sanctity best and remains most vital, vibrant, and dynamic when strictly separated from government.
Unfortunately, now with the removal of each brick in the wall of separation, our freedoms are that much less secure and the foundation of our nation less firm. The loss of understanding in the reason for the wall of separation between church and state can only condemn us to repeat the bloody history of past religious persecution.
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A shorter version of this article can be found under the title “God, Caesar and Historical Revisionism” at:http://old.spectrummagazine.org/library/columns2002/020902scott.html.
1 Allison Jones, ed., Chambers: Dictionary of Quotations (New York, 1997), p. 842, No. 84.
2 See Pontynen and Scott article Founding Fathers: Cannon Fodder in a Cultural War, 2000.
3 “Treaty with Tripoli, 1796, Article XI,” quoted in William Addison Blakely, ed., American State Papers and Related Documents on Freedom in Religion (Washington, D.C., 1947), 311, 312. See also, Robert Boston, “Joel Barlow and the Treaty with Tripoli,” Church and State Magazine, June 1997, 11 – 14.
4 See, most recently, Philip Hamburger Separation of Church and State (Cambridge, Mass., 2002).
5 Our main source for Williams’ life is Edwin S. Gaustad, Liberty of Conscience: Roger Williams in America (Grand Rapids, Mich., 1991).
6 Ibid. 43.
7 Ibid. 203 – 204. The quote comes from An Appeal to the Public (Boston, 1773). See also, Leigh Johnsen, ed., Isaac Backus Papers, 1630 – 1806 (Ann Arbor: UMI, forthcoming).
8 Democracy in America, ed. J. P. Mayers, trans. George Lawrence (New York, 2000), 17, 47.
9 Ibid. 295.
Dexter Avenue and the Battle for the Bill of Rights
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