What causes more religious strife: Government bodies posting theTen Commandments, or courts ordering their removal?

Sat Aug 6 14:40:33 PDT 2005

Mr. Garman, of course there are people on this list who disagree with
separation.  But there are also people who agree with you on some or all
issues who feel more embarrassed than supported by the stick-figure
simplicity of thinking all answers can be unambiguously derived from a
few proof texts if you just repeat them enough times.  I agree that
government should not endorse any belief about religion, and that that
is the best interpretation of the Establishment Clause in light of
founding principle and national experience.  But I also recognize that
government routinely endorsed religion at the time of the founding, and
the practice did not stop after ratification of the Establishment
Clause.  History is messy and complicated, not simple.

Davis v. Beason upheld a religious test oath.  The oath did not just
prevent polygamists from voting; it prevented any Mormon from voting.
You claim to rely on literal text and yet you endorse Davis v. Beason.
That is inconsistent.

You claim to want complete separation, yet you want government to tax
and regulate religious practices under cases like Reynolds and Smith.
That too is inconsistent.  There is far more contact and entanglement
when government regulates religion than when government leaves religion
alone.

Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Gene Garman
Sent: Saturday, August 06, 2005 4:11 PM
To: Law & Religion issues for Law Academics
Subject: Re: What causes more religious strife: Government bodies
posting theTen Commandments, or courts ordering their removal?

Volokh, Eugene wrote:

    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.

Mr. Volokh,

As for years, I have been involved in study of the issue of religion and
government ever since majoring, over forty years ago, in religion and
history at Baylor University, which has an institute of church and
state. I make no claim to being a
Leo Pfeffer or a Leonard W. Levy, but I have read their work and I am a
graduate of a Baptist theological seminary, well versed in the issue of
religion and government, including the history connecting the two, which
is why I easily refuted and rebutted Justice William
Haven't-done-sufficient-research Rehnquist's 1985 dissent in Wallace v.
Jaffree:

Read Gene Garman's essay in the May/Jun 1999 issue of Liberty magazine.
It documents Justice William H. Rehnquist's abuse of the Establishment
Clause and its history. Click on the following url:
http://www.libertymagazine.org/article/articleview/162/1/41 

I also spent enough time in law school to know that American history is
probably not taught in any law school. What I see in some of the
responses on your religionlaw listserve is a significant lack of
appreciation for the role religion history played in the development of
the constitutional principle adopted in the Constitution. The wording of
Art. 6., Sec. 3., and of the First Amendment did not just jump out of
the air into the minds of the Founding Fathers and of the distinguished
six members of the joint Senate-House conference committee which drafted
the final version of First Amendment. 

The wording of the religion commandments of the Constitution is specific
and grammatically significant, the result of years of experience and
debate in the colonies, original states, and the First Congress. Did
everyone agree? No, but the result was the specific expressed conclusion
and opinion of the majority of those in the middle of the issue. Did
every Congressman agree with President Madison's veto of two 1811
religion bills passed by Congress? No, but the majority sustained
Madison. 

To suggest that facts of history do not have relevance to an
understanding of the meaning and application of the religion
commandments is silly. For you and others to dismiss the value of
"separation between Religion and Government" (James Madison), as if it
were not a part of the basic discussion or of the constitutional
solution, does not impress me that you want to know as much about the
matter as you and they profess, because you have already made up your
mind. And, I am not convinced, for examples, that you have read every
thing deists and primary sources James Madison and Thomas Jefferson
wrote on the subject of religion and government, the book Separation of
Church and State in Virginia by H.J. Eckenrode, or The Writings of Elder
John Leland, by L.F. Greene. I had some great professors of Baptist
history.

The issue of religion and government has been a matter of American
history from the nation's beginning, and it is obvious to me some
participants in your listserve discussion do not accept the significance
of understanding that history. You are correct in the fact that the
mentality of the Dark Ages still exists in America; but, American
separationists won the argument in Jefferson's and Madison's day and
will continue to debate and defend the principle because it is the
essence of religion freedom, as guaranteed by the words of the
Constitution. 

The debate is not about understanding that some disagree; it is debate
related to obvious confusion about constitutional principle, as
evidenced, not only on your listserv, but by the recent Ten
Commandment's Court rulings and very conflicting opinions expressed by
the current Justices. 

In contrast to constitutional revisionists Rehnquist, Scalia, and
Thomas, I agree with separationists like James Madison and Thomas
Jefferson. I agree with the Court's rulings in Reynolds, Davis, Everson,
McCollum. I agree with the Justices who wrote and concurred with the
following: "We have staked the very existence of our country on the
faith that complete separation between the state and religion is best
for the state and best for religion" (Everson v. Board, 330 U.S. at 59,
McCollum v. Board, 333 U.S. at 232). The only reasonable implication
which can be justified from these men and these decisions is that
"separation means separation," not something less.

Gene Garman, M.Div.
America's Real Religion
www.americasrealreligion.org

<http://www.americasrealreligion.orgMr> 

-----Original Message-----
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?

Eugene,

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,
2:365, 1797).

"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
www.americasrealreligion.org

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