What causes more religious strife: Government bodies posting
theTen Commandments, or courts ordering their removal?
VOLOKH at law.ucla.edu
Fri Aug 5 09:21:28 PDT 2005
Mr. Garman: Here's a tip -- when someone disagrees with you,
especially someone who has been working in a field for ten years, it's
usually *not* because he has difficulty understanding. Rather, it's
because he understands things but draws different implications from them
than you do.
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Gene Garman
Sent: Friday, August 05, 2005 3:41 AM
To: Law & Religion issues for Law Academics
Subject: Re: What causes more religious strife: Government bodies
posting theTen Commandments, or courts ordering their removal?
Can it really be so difficult to understand what causes strife in
respect to religion and government? To start with, in terms of an
example, the subject line omits a significant point: the Ten
Commandments are Jewish religion laws. No strife there? To end with, the
problem is government, the essence of coercion.
As for guidance, the recent Court split decision relating to the Jewish
Ten Commandments illustrates confusion, not constitutional
understanding. Because you object to my use of James Madison, "Father of
the Constitution" and cochair of the joint conference committee which
produced the final draft of the First Amendment's religion commandments,
I will accommodate you by citing other relevant sources:
"The government of the United States 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 [Muslims]" (Attorney and
President John Adams and the U.S. Senate, Treaties, Hunter Miller,
"Believing with you [Baptists] that religion is a matter which lies
solely between Man and his God, that he owes account to none other for
his faith or his worship, that the legitimate powers of government reach
actions only, and not opinions, I contemplate with sovereign reverence
that act of the whole American people which declared that their
legislature [Congress] should 'make no law respecting an establishment
of religion, or prohibiting the free exercise thereof,' thus, building a
wall of separation between Church and State" (Attorney and President
Thomas Jefferson, letter to Danbury Baptist Association of Connecticut,
January 1, 1802).
"On my arrival in the United States the religious aspect of the country
was the first thing that struck my attention; and the longer I stayed
there, the more I perceived the great political consequences resulting
from this new state of things. ... I questioned the members of all the
different sects; I sought especially the society of the clergy. ... I
found that they differed upon matters of detail alone, and that they all
attributed the peaceful dominion of religion in their country mainly to
the separation of church and state. I do not hesitate to affirm that
during my stay in America I did not meet a single individual, of the
clergy or the laity, who was not of the same opinion on this point"
(Alexis de Tocqueville, Democracy in America, 1835, 1:308).
"It is proper here to view the situation of the episcopal church at the
termination of the revolutionary war. ... The advantages ... were of
much importance. ... One arose from the perfect religious freedom
established in the United States, without any control exercised by the
civil authority over spiritual concerns. In consequence of this, every
denomination was held to possess the full power of regulating for itself
the ecclesiastical government, discipline, and worship within it; and of
promoting, by every lawful means, its religious welfare and improvement,
without being subject to obstructions, or other disadvantages arising
from the connection of religion with secular policy. On these subjects
our constitutions gave no powers to the civil government. Its protection
was extended to all; and their religious privileges were secured, and
guarded from the encroachment of others" (Bird Wilson, Memoir of ...
Bishop William White, 88-89, 1839.
"The divorce between Church and State ought to be absolute. It ought to
be so absolute that no Church property anywhere, in any state, or in the
nation, should be exempt from equal taxation" (Congressman and eventual
President, James A. Garfield, Congressional Record, 2:5384, 1874.
Reynolds v. U.S, unanimous, 1879.
Davis v. Beason, unanimous, 1890.
It is not tolerance. It is freedom under law which applies to all
equally, regardless of religion, which eliminates strife. Separation
between religion and government, government neutrality, and equal
treatment under law is not hostility or discrimination, it is the wisdom
of the ages which produces peace and harmony in a society composed of
citizens of many faiths and of none. That is what the religion
commandments of the Constitution are about, and it is as simple as that.
Gene Garman, M.Div.
America's Real Religion
Volokh, Eugene wrote:
I much appreciate Mark's point; but I wonder then at what level
of generality we accept (if we do accept) Justice Souter's historical
claim. For instance, it's not clear to me that genuinely evenhanded aid
programs have caused that much strife -- especially not along the lines
of the violence that Doug, Paul, and others have pointed to. Likewise,
I think, as to most references to religion (especially of the
Scalia-described monotheistic God-the-Father variety) in government
speech. I suspect that government discrimination against particular
denominations in benefit programs or in regulations (as opposed to
speech) may have created substantial strife; likewise with government
references to religion that exclude huge religious minorities (as
opposed to only small ones). But as a general matter, it seems to me
that the strife flows from a fairly narrow range of government
interactions with religion, much narrower than the range of interactions
that the Justices who focus on strife would read the Clause as
Mark Tushnet writes:
I'm a few hours behind on these postings, so apologies in
advance if this point has been made: Suppose that the inquiry
into strife is not a direct "touchstone," in the sense that asking
whether X causes religious strife is relevant to deciding whether X
is constitutional. Rather -- as I think Justice Souter argued in
McCreary -- the fact that government interactions (or some other
term) with religion historically did cause religious strife should
guide our interpretaion of the First Amendment. He then argues
that, when one considers the other relevant interpretive material,
the best test that emerges is a rule of neutrality, but one could
take his first point without thinking that his specific doctrinal
conclusion -- drawn, again, from other interpretive material -- is
the correct one.
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