First, Dingo presumes the First Amendment guarantees "freedom FROM religion where the government is concerned." Not so. The relevant Constitutional text does no such thing. The Constitution does not shield one from encountering religion any more than it protects from being hit by air molecules. Dingo's position is unsupported by precedent. See Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872, 890 (1990) ("Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process."); Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984) ("An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority. Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.") (citations omitted).
Second, Dingo's conceptual yardstick skews the result. The joker in the deck is defining neutrality as "a secular government - to me, that is one that neither facilitates, nor restricts religious expression." Whatever the merit of this claim in the abstract, it's plainly false today. As Jonah Goldberg observes (National Review, May 23, 2005 at 30), "Modern liberalism has taken on the trappings of a religion." Dogmatic secularism fits the bill.
Gary Gutting defined faith to require a "total commitment to the implications of what is believed and this is incompatible with continuing reflection on its truth." Religious Belief and Religious Skepticism, 1982, at 106. That covers the secularists today. Do they know when life begins? Don't question abortion on demand--unless you're prepared to be ostracized. Gay marriage? Boomr, another commenter, claims "neutrality" demands it. [Added 3pm] And liberal secularists know global warming is real; no need to prove it; skeptics must be either defeatists or fascists. All of which sounds like a catechism for the faithful--and a shared understanding of heresy.
Today's liberals are neither liberal nor tolerant. Liberal secularists rarely mix with those in different (red state) "congregations;" as a result, they demonize anyone with whom they disagree. In the blue states and the media, "[E]veryone knows by now that the prejudices of the powerful are labeled "rational," while the simple rituals of the peasantry are labeled "superstition." As Peter Wallison noted, "The fact that Christian fundamentalists hold different views from their own means that, in their eyes, the fundamentalists are divisive and intolerant." For post-Clinton liberals, "The 'comprehensive doctrines' of moral traditionalists and individualist free spirits alike, doctrines having millions of adherents, end up being effectively written off as 'unreasonable' from the egalitarian liberal point of view." The liberal view of religion "is stuck in century-and-a-half old Marxist hostility. Thus, despite their professed "tolerance," the left never plays fair." [Edited 3pm]
Moreover, secularists don't occupy the middle ground. Instead, as Jesse Walker (no fan of conservatives) concluded:
The dominant species of liberal doesn't just want to maintain the old taboos; it wants to introduce some new ones. For many Americans, the Democrats are the party that hates their guns, cigarettes, and fatty foods (which is worse: to rename a french fry or to take it away?); that wants to impose speed limits on near-abandoned highways; that wants to tell local schools what they can or can't teach.In other words, the secular seek to "swap one intolerance for another."
True neutrality requires even-handedness. I've no objection to Dingo's secularism--but not his delusion. Secularism and religion are opposites--each protected by the First Amendment, but neither neutral.
More:
Tolerance, secular, illustration thereof, Garrison Keillor variety, about the right-wing, in The Nation:
They are evil, lying, cynical bastards who are out to destroy the country I love and turn it into a banana republic, but hey, nobody's perfect. And now that their man is re-elected and they have nice majorities in the House and Senate, they are hunters in search of diminishing prey.(via Bloggledygook)
Still More:
Dingo replies, I answer.
_________________
* Jimmy, another commenter, is wrong about the scope of the Amendment--though the wording appears limited to Federal actions, the Supreme Court read the 14th Amendment to "incorporate" the First Amendment and thus apply to the states. Gitlow v. New York, 268 U.S. 652, 666 (1925). So a state cannot adopt an official religion.
11 comments:
Nice, very nice. Good links.
I agree with Dingo's statement that the government itself can neither facilitate nor restrict religious expression. However, demanding that government itself have no basis in any type of thought considered "religious" is both unhistorical and unconstitutional. Such a thesis (really advanced by Booomr rather than Dingo) plainly involves precisely that restriction of religion which the First Amendment explicitly bars.
As to your point about secularism essentially constituting a religion, I believe this point is becoming clearer and clearer. As the "secularist" body of thought defines itself more coherently, it both identifies underlying axiomatic elements of its beliefs and also finds expression of this in the form of churches. The recent CUNY seminar about the "theocracy" (sponsored partly by a church council) demonstrated this trend, as does the Montgomery County school system's errant rebuttal of the Bible and attempt to impose its own improved theological moral doctrine.
To apply Boomr's statement would in effect debar the Congress from passing any laws based on one body of thought when that body of thought was not accepted by another body of thought. And that is an obvious violation of the First Amendment.
Both "religious" and "secular" principles widely held by the US population may find their expression in law under our Constitution as long as they do not deprive individuals of their fundamental rights as defined by the Constitution, but to do so the population must have reached a consensus expressed through a majority vote of their elected representatives.
Both sides of this debate must acknowledge that the Constitution imposes limits upon their ability to impose their private beliefs upon the population of the United States.
I still maintain that there are some true liberals left. It's just that there thinking doesn't always predominate in the Democratic leadership of today. Sanford Biship of GA is one of them.
Both you and Lancelot Finn have commented on the elitism involved in some areas of the modern left. We are seeing that now both in Europe and here in the US.
You've completely misread Employment Div., Ore. Dept. of Human Res. v. Smith. It is not applicable for your argument. It has nothing to do with the concept of freedom FROM religion where the government is concerned. It is a case where the government is encroaching on the freedom OF religion and has no application to freedom FROM religion. It is dealing with religious neutral laws, not laws that are religious in nature.
It, in fact, says that laws must be religion neutral "The Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as that prohibition is generally applicable."
"To say that a person's right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct." Id.
"Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." United States v. Lee, 455 U.S. 252, 263 , n. 3 (1982)" Id.
Your quote - "Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process." Is in reference to the above quotes. Religious practice does not exclude us from conforming to religion neutral laws. Much like freedom of speech does not give us the right to yell "fire" in a crowded theater.
You might want to re-read this one. (or maybe you are not understanding what freedom FROM religion is?)
Once again Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984) has been completely misread and misquoted. This case is about discrimination and freedom of association. I don't see how the case, or the quote supports your position. Yet again, it does nothing to address freedom FROM religion.
"As Jonah Goldberg observes (National Review, May 23, 2005 at 30), "Modern liberalism has taken on the trappings of a religion." Dogmatic secularism fits the bill."
So, now Jonah Goldberg gets to define my beliefs? So, I guess you, as a conservative, are part of one giant monolithic voice also. Who speaks for you? Pat Robertson?
"Today's liberals are neither liberal nor tolerant. Liberal secularists rarely mix with those in different (red state) "congregations;" as a result, they demonize anyone with whom they disagree."
Yes, and the right is completely devoid of any of this, right? Are you really going to say that the right is more tolerant? Do you really believe that there are religious conservatives beating down my door to be friends with me with complete acceptance of my beliefs? I suppose being called a "spawn of Satan" to my face because I believe in evolution is proof of what? And it is not like I am an atheist either. I believe in divine intervention. Not so much tolerance coming from the right either. There are those who are intolerant on the left, and there are an equal number on the right. Neither side is immune to this trait.
"Secularism and religion are opposites--each protected by the First Amendment, but neither neutral."
Once again, I think you are completely missing my point. I advocate a secular government, not a secular society. There is a difference between a government official being a religious person, and a government official applying his/her faith to official government acts. Look at it in geopolitical terms. On one side you had the US. On the other you had the USSR. In the middle, you had a neutral Switzerland. Just because they were not pro-US, it didn't make them anti-US. They just stayed out of it.
Dingo:
You dispute my interpretation of religious freedom, and insist the Constitution shields you from religion. And you re-assert the the primacy of secularist reason over faith.
I do understand your arguments-- they're simply wrong.
1) I said that the First Amendment (containing two provisions, the "establishment" and "free exercise" clauses) does not mandate freedom from religion. You don't appear to argue the contrary; you certainly didn't supply a textual analysis showing how the words must mandate your interpretation/opinion.
2) I never disputed (on recent threads at least) that the First Amendment's been interpreted to prohibit government from discriminating between religions. So you're chasing phantoms; making your first quotation from Smith irrelevant.
3) I never claimed the First Amendment forbids otherwise valid legislation effecting worship if non-discriminatory (general applicability). Point 2 is essentially implied by point 1. Because that's the principal holding in Smith -- which I never challenged -- I'm not misreading the case.
In particular, you claim my Smith quote isn't applicable (values in the Bill of Rights "are not thereby banished from the political process"). Your response is to re-assert that religion be removed from politics, without demonstrating why "not banished" means banished. Instead, you tie the quote to neutrality, without explaining the connection.
You never address my argument other than by analogy to content-specific limits on free speech. But that dog won't hunt, because you've misquoted the scenario from Schenck v. U.S., 249 U.S. 47, 52 (1919): "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." (emphasis mine).
In any event, the two are unrelated in this context. A theater isn't Congress, nor is legislation likely to lead to panic. And falsity isn't the issue. That covers the remaining quotations from Smith.
4) In addressing my actual arguments, you merely re-assert your opinion, adding no support. Instead, you claim points 2 and 3 somehow rebut point 1. How? Why? Who says? They're entirely different assertions. Requiring government to be neutral can't be twisted to oblige government to install a cone of silence on request. The Bill of Rights are "negative rights," forbidding certain governmental actions--but you want affirmative protection above that mandated by the "establishment clause."
5) You dismiss my citation and quotes from Roberts on two grounds, neither correct:
First, you say the case involved the First Amendment "association" clause, not either religion clause. That's true. But my Roberts quotation addressed the right to "worship" and to "religious . . . ends." You never address that holding, instead treating the words as judicial chin music. (Besides, the interpretation of a particular First Amendment provision provides an argument by analogy to others, which you don't address.)
Second, you say Roberts is about discrimination. Yes it is--and so unrelated to my argument.
6) You cry foul about quoting Jonah Goldberg, because shouldn't define your beliefs. This is insane. I didn't quote Jonah as a "fact." The quote was used to support my syllogism that secularism has become a religion. You're entitled to disagree, which you do a few paragraphs down. But your reasoning is both freighting and impractical:
a) you claim it's unconstitutional for faith to guide policy decisions. There's a word for that policy: censorship. Worse, you want to criminalize thought. I'm stunned at your willingness to compromise our most basic liberty.
b) you implicitly assume secular motivations may influence policy choices. This departs from value neutrality, and so also would violate the "free exercize clause." Even if secularism isn't a religion, such discrimination is inconsistent with the prohibition on most content-specific restrictions on speech (which you extoll elsewhere).
c) you fail to explain how, in practice to enforce your policy. Do you propose interrogating every representative and bureaucrat? If so, how? Vulcan mind-meld, perhaps? Would the Fifth Amendment protection on self-incrimination apply?
Decisions flow from multiple motivations. What would make any particular choice "religious?" Would this prohibit the 10 Commandments or Golden Rule? If someone doesn't say "Jesus" but proposes to throw money lenders out of the Commerce Department, is that religious? Should we adopt the Louisiana 1/32nd rule? If so, how would you measure the degree of "religiosity?" Better not trust the French skating judge.
7) Lastly, you tar me via other conservatives. You've got some justice here. I never said all conservatives are saints--a point I recently re-affirmed. But I've concentrated on your concrete plan to ban religion and faith from politics. It's unconstitutional, impractical--and silly. You haven't shown where I'm wrong.
I think we are talking around each other here. My concept of freedom FROM religion = I DO NOT have the constitutional guarantee that I can walk down the street without seeing a church, a nativity scene on private property, religious garb being worn, or even you preaching on a street corner to me. I DO NOT have a constitutional guarantee that my congressman or my district court judge will not go to church, temple or mosque to worship. I DO NOT even have a guarantee that my congressman will not attempt to conform the laws to be more in line with his/her religious beliefs. This is the free exercise clause
I DO have a constitutional guarantee that I will not have to pray with the judge before beginning an argument in court. A defendant DOES have a constitutional guarantee that the judge will not say to the jury, "while the law say X, you are free to disregard the law and instead rely on biblical verse." I DO have a constitutional guarantee that my congressman will not pass a law that says my children must study the bible. This is the establishment clause.
That is my definition of freedom FROM religion. Are you seeing it yet?
As for your other arguments- Employment Div., Ore. Dept. of Human Res. v. Smith is not a complex case. It has probably been taught to ever first year law student since the decision came down. I cannot refute your claims because they are simply not applicable. Not only is the decision not 'holding' in your augment, it is not even dicta. It is like you saying, "please sir, describe that apple!" and then pointing to an orange. The same thing is true with your other cites. You are picking and choosing quotes and trying to create dicta from thin air. Case law just doesn't work that way. You are somehow making the leap from one end of a spectrum to another without tying it back in.
"The Bill of Rights are 'negative rights,' forbidding certain governmental actions--but you want affirmative protection above that mandated by the 'establishment clause.'"
how can you have negitive rights that are not protected by affirmative actions? That is an imposibility. And if the establishment clause does not mandate a bar on legislative action, what does it mandate?
"I never said all conservatives are saints"
Nor have I claimed all liberal-secularist are either. I am not looking to take away people's faith. Only government officials trying to subvert the law with their own religious tenant.
BTW, "because you've misquoted" would mean I had actually quoted it verbatim. Where as I only quoted "fire," I didn't misquote anything. It is called a paraphrase.
I was tired and hurried last night, and omitted one step and mis-characterized another:
1) I am relying on the "free exercize" clause and non-discrimination. I meant to say that I wasn't relying on the "general applicability" prong.
2) The standard of review in free exercize cases is:
a) Is the restriction content neutral;
b) if not, a strict standard applies, making reversal more likely.
c) if so, the restriction normally will be upheld so long as it is generally applicable.
3) Here, Dingo proposes to ok Gaia but outlaw God. This is anything but content neutral. Accordingly, dingo may not take advantage of the lower threshold, but must pass a strict scrutiny.
Dingo:
We finally agree. Not that you're persuasive--it's because you have completely shifted conclusions. Your new interpretation of the First Amendment mostly is accurate--but mostly is trivial.
1) For two weeks, you've argued for freedom FROM religion. But your last comment substantially clarifies and narrows the scope of your argument. And I agree with that narrow scope.
For example, you say freedom of religion forbids compulsory prayer in public schools--and already concurred. Further I concur that requiring children to study the bible is impermissible under most circumstances (a public school might compel bible reading in the context of history, sociology or comparative religion, but could not preach any particular faith). So, yes, I DO see your "definition of freedom FROM religion--the first and second example being prohibited by the establishment clause; depending on context, the second example might also be barred by the free exercise clause.
2) Some nit-picks remain. I still think your reading of Smith overly narrow. Moreover, your analogy to Schenck remains flawed--not by a trivial paraphrase but by ignoring consequential distinctions between speech and religious freedoms, namely the narrow exceptions to free speech tied to falsity (e.g., crying wolf in Schenck or recasting cold feet as kidnapping) or conduct (e.g., the panic in Schenck, the "fighting words" in Chaplinsky). Here, you don't claim religious speech is false, and I don't demand immunity for all religiously-motivated conduct, as can be seen by my reliance on Smith. But none of these points are consequential to your interpretation of religious freedom, as clarified, we can ignore such negligible disagreements.
3) I believe we are in accord--but you didn't address my example about moneylenders in the Commerce Department. To clarify, I proffer three hypotheticals to confirm our agreement:
a) A state law saying, in its entirety, "Before acquiring any real property, all purchasers must first recite, and agree to abide by, Job 31:32, or be fined not in excess of $50,000, and imprisoned not in excess of 6 months." Constitutional or not? Either way, identify the relevant Constitutional provision at issue.
b) A law "requiring state residents who erect 90-foot tall statues of Jesus on their property must also install, within three months, statues of the exact same height and width depicting, individually, Abraham, Allah, Vishnu, Zoroaster and Confucius or be fined not in excess of $50,000, and imprisoned not in excess of 6 months." Constitutional or not? Either way, identify the relevant Constitutional provision at issue.
c)So called "blue laws," in particular a legislative directive that forbids at least some commercial establishments from opening on Sunday "or be fined not in excess of $50,000, and imprisoned not in excess of 6 months." Now imagine three different quotations from the bill's sponsor in the "legislative history" leading to the law's adoption (assume each is definitive and accurate):
1) "Citizens of this state need more leisure time. Since this state joined the Union in [date], the mode day of rest has been Sunday. Building from this historical tradition, therefore, [these types of establishments] cannot open on Sunday."
2) "Citizens of this state need more leisure time. This state has a Christian heritage, and the majority of the state's electorate is and long has been Christian, and the Christian day of rest is Sunday. So Sunday a good day for resting and, indeed, the most appropriate day for the Christian majority in the state. Therefore [these types of establishments] cannot open on Sunday."
3) "The Bible requires a day of rest -- called the Sabbath, established to promote prayer and reflection -- which the New Testament says is Sunday. Therefore, [these types of establishments] cannot open on Sunday."
Same question for 1, 2 and 3: Constitutional or not? Either way, identify the relevant Constitutional provision at issue.
And if we agree, can we move on to something else, something simpler, say, gay marriage?
But, that is what I have been saying all along. My comment from MOM's original post:
"I am guessing what you were getting at with the what "I haven't said" was the whole freedom from religion. People confuse this issue. No, we don't have a guarantee FROM religion. I cannot redress the government to stop the building of a church in my neighborhood. I cannot stop a individual from putting up a nativity scene on private property. I cannot stop Jews from wearing Yakimas [sic]in public. BUT, the constitution does guarantee a freedom FROM religion where the government is concerned.... As for a secular government - to me, that is one that neither facilitates, nor restricts religious expression. It is a government that does not infringe on a child's right to wear religious garb (cross, Yakima [sic], head scarf, etc.) to school, but does not participate in organizing prayer....A secular government is one that does not organize Christmas celebrations, nor does it stop private citizens from coming together in the town square to celebrate on their own. " http://maxedoutmama.blogspot.com/2005/05/secular-government.html
Anyhoo, to your hypothetical:
3a) Unconstitutional on several levels. First, under the contracts clause since the law is completely superfluous to any rational governmental interest (the lowest threshold). Second, possibly under to takings clause since it burdens the property. Third, it is unconstitutional under the establishment clause. Even though the verse is not in regards to any particular god or gods, requiring someone to recite and abide by a biblical passage would be unconstitutional. Fourth, it is overly broad for a criminal statute.
3b) Unconstitutional under free exercise clause. But, I think it would be legitimate for a state to say nothing on private residential property can be over 30 feet high as long as it applies to all religious and non-religious structures. You couldn't get around the zoning laws by trying to throw in freedom of religion.
3c1,2,&3) This could go either way, but the legislative history will play little in the courts decision in this case. The state only needs to show that it has a rational governmental interest in enforcing the law (since it is affecting businesses only). If the bill is generally applicable and does not target specific business arbitrarily or capriciously and cause undue burden, the government is allowed to decide after the fact what is the governmental interest (sorry, don't have a cite for you, but I'll see if I can find it later). Since it would be argued that the law was for social welfare and not religious purposes, it could be considered to be a rational interest. Many of these blue laws have been upheld. But, let us say that all businesses in the community are already closed on Sundays except the Muslim Hala market which is only open on Sundays. This law would have a disproportional impact on a specific religion/ethnic group/insular community. Whether this was unintended or an intended impact, it could be held as unconstitutional. But I think the stronger argument would be under the privileges and immunities clause than the free exercise clause. Either way, the threshold would jump from 'rational' to 'compelling.'
Does that comport with you or do we need some more discussion?
It comports and we agree--with the minor caveat that I dissent from your speculation about the impact of Blue Laws on Muslim markets. I'm glad we thrashed it out.
Cool. I am glad we can agree on that and did it without trying to tear each others throats out. While there will always be some things that we will never see eye to eye on, I think there is a lot that the left and right can agree on if we start talking to each other instead of at each other. And, trust me, I spend as much time trying to convince lefties of this as much as righties. It has been a pleasure.
NEXT!
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