Mercer University: Religious Liberty in the Constitution
Gary Simson, Dean of Mercer’s Walter F. George School of Law, speaks on religious liberty as established in the constitution and what it means to us. He discusses how the United States was designed to be a country that took religion very seriously but respected the decisions of individuals as to which religion to practice or not practice.
VIDEO: President Obama on Church and State
Obama explains the importance of church-state separation in a variety of ways. What it comes down to is; In a diverse democratic society, any proposed policy must justify itself via the benefits we ALL see, rather than via arguments that only hold true to people who have one certain religious worldview.
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.)
Supreme Court nominee Sotomayor’s rulings on religious issues
University of Toledo law professor Howard M. Friedman has compiled a list of Judge Sonia Sotomayor’s rulings on religion clause issues at his blog, Religion Clause. Sotomayor has served on the Second Circuit since 1998. She served as a federal district court judge in the Southern District of New York from 1992 to 1998.
Friedman lists a couple of Second Circuit decisions involving religion where Sotomayor joined the panel majority, but his list of Sotomayor’s Southern District decisions is most helpful:
- Mehdi v. United States Postal Service, 988 F. Supp. 721 (1997) [LEXIS link] (rejecting claim by Muslim plaintiffs that post offices must include crescent and star along with Christmas and Hanukkah decorations);
- Moore v. Kennedy, 1996 U.S. Dist. LEXIS 11474 (1996) (prisoner free exercise);
- Miller v. New York State Department of Labor, 1996 U.S. Dist. LEXIS 11067 (1996) (employment discrimination);
- Utkor v. McElroy, 930 F. Supp. 881 (1996) [LEXIS link] (immigration asylum);
- DiNapoli v. DiNapoli, 1995 U.S. Dist. LEXIS 13778 (1995) (accusations against sibling, member of religious order, growing out of estate administration).
- Rodriguez v. Coughlin, 1994 U.S. Dist. LEXIS 5832 (1994) and Campos v. Coughlin, 854 F. Supp. 194 (1994) [LEXIS link] (preliminary injunction allowing Santeria prisoners to wear religious beads).
- Flamer v. City of White Plains, 841 F. Supp. 1365 (1993) [LEXIS link] (enjoining city from preventing rabbi’s placing of menorah in city park during Hanukkah).
Read the full article at http://religionclause.blogspot.com/2009/05/sotomayor-is-high-court-pick-here-are.html
Judge Bork predicts ‘terrible conflict’ will endanger U.S. Catholics’ religious freedom (CNA)
EXCERPT:
.- Former Supreme Court nominee Judge Robert Bork has predicted that upcoming legal battles will have significant ramifications for religious freedom. He names as issues of major concern the continued freedom of Catholic hospitals to refuse to perform abortions and the likely “terrible conflict” resulting from the advancement of homosexual rights.
Speaking in an interview published Tuesday by Cybercast News Service, Judge Bork discussed the contentious nature of modern politics.
“Everything is up for debate these days. I can’t think of anything that isn’t,” he said.
“You are going to get Catholic hospitals that are going to be required as a matter of law to perform abortions,” he claimed.
“We are going to see in the near future a terrible conflict between claimed rights of homosexuals and religious freedom… You are going to get Catholic or other groups’ relief services that are going to be required to allow adoption of a child by homosexual couples. We are going to have a real conflict that goes right to the heart of the society.”
Asked whether there was a freedom of conscience clause anywhere in the Constitution that might prohibit the U.S. government from compelling a religious hospital to perform abortions, he replied:
“Well, the free exercise of religion clause might fulfill that role.”
Religious Pluralism & America’s Christian Nation Debate: Revisiting the Intentions of America’s Constitutional Founders
By Gregory W. Hamilton
The constitutional system of the United States of America remains the envy of the outside world despite the growing unrest of our European allies towards our country’s Administration, and the continual provocation against it by terrorists and a few hostile Arab-Muslim nations.
Yet the greatest threat to our constitutional system comes from within, and particularly from a few overzealous souls who seek to reinterpret our nation’s constitutional history in a way that suits their own desire for raw political power. Read more
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.
______________________________________________________________________________
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.
Patriotism, Piety, and the Perfect Storm
Published in Liberty Magazine – November / December 2007
Smart advertisers understand the value of tapping into the celebrity of famous sports and entertainment figures in order to build instant credibility and brand recognition. Athletic gear manufacturer Nike would slip off the radar screen without the purchased endorsement of legendary athletes like Michael Jordan, whose shoes made him fly. Would-be members of Congress solicit the personal endorsement of former presidents and mayors of large cities, and governors seek celebrities who can breathe fresh air into stale initiatives.
But as credible and well-spoken as celebrities can be, there is always the risk that a celebrity will make a mistake that can sink a political career. In spite of what publicists would have you believe, celebrities are human after all and they live under the microscope of a curious society that salivates for the latest scandal.
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Toward a Medieval Model
Published in Liberty Magazine – March / April 2006
Amid all the activity of a turbulent year, many missed the March 3, 2005, filing of the Constitution Restoration Act of 2005 (CRA) in both houses of Congress (S. 520 and H.R. 1070). If enacted, the CRA would effectively turn the United States into a theocracy, in which the arbitrary dictates of God—as interpreted or discovered by a judge, politician, or bureaucrat—would override the rule of law.
In the words of the legislation, which is identical in both houses, federal judges would be barred from reviewing “any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity’s, officer’s, or agent’s acknowledgment of God as the sovereign source of law, liberty, or government.”
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The Flushing Remonstrance
By Michael D. Peabody, Esq.
Published in Liberty Magazine – November / December 2005
The steel-and-glass skyline of Manhattan still soars toward the heavens with the confidence of a people born free. But the cradle of this freedom is not found in the luxury of Wall Street or the neon sparkle of Times Square. Instead, it rests in a simple farmhouse located near the No. 7 train.
A short distance away, generations of New Yorkers have jokingly warned of the shadowy figure of an old man with a peg leg seen pacing back and forth near the Bowery at St. Mark’s, the place where his bones lie buried. Read more
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