Noah Feldman of the New America Foundation has an very well written and provocative article called A Church-State Solution. He talks about the origins of the issue in America, the contending ideas and groups ("values evangelists" vs. "legal secularists") the Supreme Court's modern-day approach, and a solution that he thinks might actually bridge the divide.
He's also smart enough to note that both the values evangelists and legal secularists have conceptual flaws that ensure their inability to win even if granted victory. So try this on...
What if the Supreme Court in the Justice O'Connor era got it precisely 180 degrees wrong - restricting what it should permit, and permitting what it should restrict? Go read the article to see what I mean. Not sure I'm on board, but it's making me think. What do you think?
No dice. While I’m probably what’s considered to be a secular social conservative if you skip to the end where they get to their actual “deal” it can be summed as “we agree to quit trying to make you take down the Ten Commandments and nativity scenes if you agree to give up school vouchers.” In other words this is another case of leftists trying to scam conservatives into trading a substantive issue like school choice for a symbolic victory.
I’ve seen this kind of garbage before at the Washington Monthly where they tried to pass off a health care reform “compromise” to conservatives that we were supposed to jump at because it had the word “voucher” in it – even though the bulk of it included Canadian-style price controls and a new federal agency that would determine what health care services were “necessary.”
My suggestion to conservatives – fight like hell for Clarence Thomas-style federalist judicial nominees who don’t buy into the ridiculous idea that the Establishment Clause of the First Amendment which pertains to Congress is somehow incorporated by either the “privileges and immunities” or “Due Process” clauses of the Fourteenth Amendment. Or at least ones who recognize the sheer absurdity of considering a religious decoration the “establishment” of a government-run church.
Better to support federalism and the division of power between the federal and State governments. If a State or a local community gets it wrong, it affects the people there who can (and are usually in the best position) to push for a change or who can move to an area more to their liking.
Let’s not snatch defeat from the jaws of victory by agreeing to a lopsided “compromise” offered in bad faith.
I'm sure there will be no problem, then, when Muslims successfully lobby to get the Koran put on display next to the Ten Commandments, right?
That's up to the people in that community to decide. If want to include the Koran or not include it, that's their perrogative.
Thorley (#1) - That's where I'm trending, too. Frankly, I see the vouchers and faith-based social programs as being necessary steps on critical social-policy issues that are not likely to progress any other way.
There's also the issue that I simply do not trust that Feldman's proposed deal represents a real change of heart or mind among the liberal-left. Which means we'd be right back to the "religion banished entirely from the public square" extremism as soon as it's convenient or politically possible.
Ultimately, the best balance here is likely to be the one that comes when we say "let the respective forces mobilize and fight it out over time," with an addition of "make originalist legal doctrines a key part of the conservative push" to keep things within bounds and act as a long-term restraining force.
In other words, play to win.
There are two thoughts that nag at me here, however:
[1] I'm not an American, so not as closely steeped in American history. Feldman makes some arguments re: where the Founders were coming from.
Since my legal philosophy trends towards Thomas/Scalia originalism, that maters in a way that's beyond immediate political importance.
[2] His points about BOTH "values relativists" and "legal secularists" NOT being able to get what they really want even if they win on the political/judicial fronts still strike me as valid.
So conservatives can fix the court - which may stop the bleeding, as it were, and that's a good thing. But that will not itself help to fix the patient, which leads to a "what now" question in terms of a larger agenda that will have Orginalist constitutional limits on it.
And where are the small government conservatives that don't want their local government budgets raided for symbolic gestures to all the various religious organizations or don't want to pay higher taxes for religous schooling?
The crux always comes back to 'was it done solely on the basis of religion?'
Because otherwise there will always be cases of both 'government endorsing religion' and 'government suppressing religion'. Even the same religion.
Case in point:
A new religion consisting of enough folderol to qualify as 'a religion' where there's only "The Five Commandments".
1) You shall not murder.
2) You shall not steal.
3) You shall not provide false witness.
4) You shall not ask another to work seven days straight.
5) You shall respect one's father and mother.
"No preaching in school!" - hey, I just told him to stop stealing.
or
"You can't put me in jail for theft, I'm sorry I broke your religious beliefs, but they aren't mine, stop persecuting me!" - Are you telling me police are illegal?
This is an argument from the extreme - but given the range from Xenu-and-the-exploding-volcanos through amazing bits in the top several major religions and on through dancing-naked-in-parks all the way to God-is-a-figment-created-by-accidental-physics, there's a lot of room for my 'Half-Christian' religion.
And there's aspects of every single one of those religions that is persecuted - and ones that are endorsed by the state. Because there are side-effects that can be shown (scientifically if need be) to be a benefit or a detriment to society outside of any potential 'religious effect.'
Funny, but the article articulates my feelings on the manner. I think her is right on.
PD Shaw (#5): The small government conservatives are probably out supporting vouchers, in the belief that competition in education and taxpayers spending what they preceive to be their money is the best way to ensure discipline over the long term. And thus keep their taxes reasonable.
They may also fall into the mode of "the government shall not fund religious gestures, but neither shall it prohibit them (i.e. nativity scenes, menorahs, etc.) on public property if others wish to fund them privately."
Under the proposed rules the way to win, to get government funding, is to declare that you are not a religion. If someone doesn't like your message all they have to do is take you to court and accuse you of the "crime" of being a religion. That will surely cause more dissent and certainly not what the founders intended.
Ditto on school vouchers.
Increasing numbers of people want these, and not all of them because they want their kids to go to parochial schools. They want them because their public school systems suck, and there is a huge, well-monied and politically powerful lobby to make sure they suck forever.
Feldman says these promote "non-engagement", but getting a lousy education means non-engagement for life. Especially for the children of minorities, who go into a public school war zone so they can learn "Ebonics".
TW
I'm with you on that analysis. As for the school vouchers pay the individual not the school. I realize this opens up a huge magnitude of arguments as the responsibility is now placed on the individual. Personally I believe the only reason we are in this fix now is because Thomas Paine in his writing Rights of Man Chapter 5 opened the door for a nanny Federal government which I believe is entirely the wrong direction to go. If we are to continue down this path the only resolution I see is to empower the individual with choice not limit it.
As for the article:
It's not religion that is the political force it is the populace and their insistence on freedom of religious belief without Federal intervention period.
A Federal religion would be not be tolerated or imposed. The states were granted the powers of government not set forth in the constitution. United States Constitution Article X. - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
How is this any different than people of like minds belonging to advocacy, political action, and lobbyist groups? It isn't. The only requirement is that religious advocacy groups can not impose their religious beliefs on the entire population by federal decree. In the same vein neither can a secularist or atheistic organization impose their beliefs on an entire population by federal decree.
And where are the small government conservatives?
Probably more concerned about the hundreds of billions of their tax dollars being spent on things like Medicare, Medicaid, Social Security, and K-12 . . .
A man from my hometown once said, "A billion here, a billion there, and pretty soon you're talking real money!"
The small government conservatives are probably out supporting vouchers. . .
The public policy of universal education receives a significant economic benefit from those who voluntarily remove their kids from the public schools. There is no way to bring these children back under a system of public financing without substantial tax increases. Not to mention the effect of such public subsidies on educational costs. Plus, the current system creates a class of unbenefitted taxpayers that can be expected to oppose any increased funding of public schools.
They may also fall into the mode of "the government shall not fund religious gestures, but neither shall it prohibit them (i.e. nativity scenes, menorahs, etc.) on public property if others wish to fund them privately."
You mean like the privately funded "religious" memorial for Matthew Shepard? No, let them pay for both the memorial and the land on which it will sit.
There's a question of intrusiveness, here. The analogy between church bells and mullahs' call to prayer 5x a day is hardly exact.
Whether through vouchers or local jurisdiction, I'm hardly sanguine about the prospect of establishment of madrassahs or, for that matter, creationist grade schools teaching that Adam lined up the dinosaurs for a naming ceremony. No child should be subjected to years of dangerously stupid indoctrination because of the emotional-religious fixations of their elders.
PD
I'm not sure I follow the logic here. Are you saying if all were mandated by law to attend public education facilities the tax structure as it is currently would not support the educational institution?
Suppose we were to eliminate federal government subsidies all together? I realize this is a sticky subject but if we are to have a federal government that provides for one then it should provide for all and as the federal government knows best it should suffice that all be mandated to make use of it. If such a thing were to occur I wonder how many elites would whistle a different tune concerning the education of their progeny. If anything what is not being afforded to the populace at large is the same choices that others of substantial means can afford. If elites do not have any faith in the current educational system can someone please explain to me why the populace at large should not have the same concerns?
"They may also fall into the mode of "the government shall not fund religious gestures, but neither shall it prohibit them (i.e. nativity scenes, menorahs, etc.) on public property if others wish to fund them privately."
I am so glad that the founders were wiser than this. Where do you draw the line? Will satanists be able to build monuments advocating human sacrifice on public property? Will advocates of "sacred sexuality" be able to build Kama Sutra style statues as in Hindu temples on public property? I do not think that is your intent, but advocating only "nativity scenes and menorahs" rather than mosques and sacrificial altars you are advocating implicit establishment of a Judeo-Christian state religion, something the founders wisely prohibited.
After the Civil War when we ratified the Fourteenth Amendment (which many believe incorporates the Bill of Rights to the States), Congress then took up a separate constitutional amendment (commonly referred to as the “Blaine Amendment” after its founder) which read:
This Amendment was separate and distinct from the Fourteenth Amendment which undercuts the argument that the Fourteenth Amendment somehow incorporates the Establishment Clause or prohibits States from providing taxpayer funding for students to attend religious schools. After all if it was already covered by the Fourteenth Amendment, there would be no logical reason to cover it a second time in the proposed Fifteenth Amendment. The Blaine Amendment failed to pass the Senate and was never ratified by the States so what we really have here is people who don’t like the outcome of the vote on this failed constitutional amendment, so they’re trying to sneak it in the backdoor by having judges legislate their policy preferences from the bench.
It should be stated that I am actually somewhat skeptical of school vouchers because I think that they would have the same effect on inflating tuition prices that financial aid has had on post-secondary tuition. That being said, given a choice between tax dollars going directly to the schools (as we do now) versus a going to a parent in the form of a voucher so that they can chose the school for their kids I would prefer the latter.
I am so glad that the founders were wiser than this. Where do you draw the line? Will satanists be able to build monuments advocating human sacrifice on public property? Will advocates of "sacred sexuality" be able to build Kama Sutra style statues as in Hindu temples on public property?
You’re correct in that the “founders were wiser than this” in that they recognized that such decisions ought to be left up to the people living at the local level rather than the federal government, i.e. the federal courts.
When the ACLU is as concerned with violent Islamic teachings as they are with removing the 10 commandments from court buildings I will be a believer in them. The current deconstructionism of all things Judeo-Christian goes beyond constitutional issues and makes a mockery of an American heritage and the traditions upon which it was founded. That we are endowed by our creator with certain unalienable rights may be an affront to devout atheists, but let them shove their nescience up some other religions kiester. Atheists can honor tradition as well.
ACLU stand for "American Civil Liberties Union" and the ACLU is a group (which I proudly support) which acts to protect the civil liberties of US citizens against action by government or private entities, which harms civil liberty.
"violent Islamic teaching" is simply outside the charter of the ACLU.
As long as there are judges willing to enforce the Bill Of Rights, the ACLU will do fine without your support.
The paranoia inherent in "The current deconstructionism of all things Judeo-Christian" bothers me. The US is currently governed by explicitly Judeo-Christian Republicans, in the House, Senate, and Presidency, with devout believers selected for most judicial vacancies. Do you really think this is "deconstructionism" just because the 10 commandments are no longer posted in Southern courtroom?
Unless you’re the wrong skin color and trying to get into the University of Michigan Law School.
Or you’re the Boy Scouts of America and you want to set your own membership requirements.
Or you’re a college student at the University of Minnesota that doesn’t want your mandatory student fees being used to fund left-wing political activist groups.
Or you run a private golf tournament that doesn’t allow players to use golf carts.
Or you’re a law-abiding gun owner trying to get a concealed carry permit.
Or you want to donate your own money to your favorite political candidate.
In those cases the ACLU stands for the “Anti-Civil Liberties Union.”
BTW: while I’m sure most people know this already, civil liberties are protections against actions by government and not private entities. In a free society, there would be no governmental restrictions on private actions unless they involve the initiation of force or fraud.
One of the greatest threats to our civil liberties has been the expansion of the “public accommodations” in which privately owned and operated facilities (golf courses, boy scouts, your business, etc.) are regulated by the government as if they were taxpayer funded and government-operated. This results in a further restriction on private actions and thereby a further erosion of our civil liberties. Groups like the ACLU have been at the forefront of pushing this erosion of individual rights.
Moreover the ACLU’s “theory” of civil liberties is actually one of the most harmful to individual rights in which the federal government has virtually unlimited power sans those specific restrictions enumerated in the Constitution (and even then, they generally ignore the Tenth Amendment, are silent on the Second, and pick and choose when they do and do not support the First Amendment). The ACLU since its founding for example has been a staunch proponent of the Welfare State – one of the greatest violations of individual rights – and wealth redistribution even though this was never a power granted to the federal government by the Constitution (at least until FDR stacked the courts).
The better way of protecting individual rights has been what’s called the Reserved Powers Doctrine in which it is the power of the federal government (as defined in the enumerated powers) which are limited with the rest being reserved for the people and the States. States as we know sometimes do “get it wrong” (depending on your POV) but federalism enables people to vote with their feet. Having the “one size fits all” standard imposed by the federal government (usually by unelected judges) negates this as an option unless one wishes to leave the country.
Or you’re the Boy Scouts of America and you want to set your own membership requirements.
Was this about the BSA or about their use of schools and military bases paid for by all taxpayers?
Or you run a private golf tournament that doesn’t allow players to use golf carts.
Was that the ACLU or another organization?
Or you want to donate your own money to your favorite political candidate.
I think the ACLU is actually fighting against McCain-Feingold.
http://www.aclu.org/court/court.cfm?ID=13780&c=261&cfnocache=true
"civil liberties are protections against actions by government and not private entities. In a free society, there would be no governmental restrictions on private actions unless they involve the initiation of force or fraud."
My understanding of this statement is that you would have no problem with the "whites only" country clubs, buses, water fountains, swimming pools, churches, etc. of the segregated South, since no force or fraud was involved? From the point of view of a non-white citizen in that segregated environment, civil liberties would be quite restricted in a literal sense. I am very happy that the US judicial system did not interpret law in this way.
Certainly, the segregated South was far from a "free society" for non-whites.I know some conservatives have the "back to the future" point of view, but hopefully most do not want to go that far back!
Are you saying if all were mandated by law to attend public education facilities the tax structure as it is currently would not support the educational institution?
Yes. For instance, there are 20,000 students attending private school in D.C.; a $5,000 voucher would immiatedly cost D.C. $10 million. Plus, there is a second group of D.C. residents that send their children to school in VA or MY and either they would be entitled to a voucher as well or they would be encouraged to enroll their kids in a D.C. private school.
My point is merely that there is a large cost associated with reimagining the school system from one in which the government has a responsibility to supply a public school system and one in which the government has financial responsibility for all students. It may be a good idea (I'm agnostic on this); I don't think its small government.
Thorley is confusing "civil liberties" with "constitutional rights". With that substitution, his statements are closer to being correct.
For example, the intervention in private business that Tom refers to came about as a result of Congress invoking its commerce clause powers to make it illegal to discriminate on the basis of race in public accomodation. The Supreme Court upheld these kind of laws in cases like Heart of Atlanta Motel. The court upheld the reach of Congress' power not in those cases constitutional rights.
The ACLU has a very narrowly focused vision that leads to counter tradition or counter conservative tendacies. I call it deconstructionism, you can call it post modern rationalism if you want. The rights of blacks are protected by the constitution are not being threatened by those whities in office.
The final nail in the coffin for me was when the ACLU joined with NAMBLA (North American Man-Boy Love Association) to ensure their "right" to publish material that was used to plan the kidnapping, the sexual abuse, and murder of prepubescient boys.
Simultaneously they are gunning for the Boy Scouts while looking the other way in the cases of Lesbian/Gays using the same facilities that are denied the Boy Scouts because of their loyalty oath.
It was recently made public that the FBI is surveilling the ACLU and I applaud that.
many of the States which ratified the First Amendment (including its Establishment Clause) had State-supported churches and it was understood that the EC was designed only to prevent the establishment of a national church.
I believe there were state-supported churches as late as the 1830s, but its the Fourteenth Amendment (1868) that makes states subject to the First Amendment.
PD, actually the court never held that the Fourteenth Amendment made all of the Bill of Rights. And in fact, that was clearly not the intent of the authors of the Fourteenth Amendment. The court decides one by one whether or not to incorporate.
And the incorporation of the Establishment Clause was done by misrepresenting the history of the clause. Those who wrote and adopted the First Amendment did not contemplate that it would restrict all government involvement in religion, and those who wrote and adopted the Fourteenth Amendment did not intend that result either. A handful of judges nearly a century later created that result. This is the epitome of judicial activism.
#27 from Annoy Mouse is a pretty good example of internet legendizing.
NAMBLA, reprehensible as it is, supports only "consensual" sex between men and boys (ignoring the obvious fact that children are not competent to make sexual decisions in a consensual manner). So there are not materials on their site to plan kidnapping or murder, although sex between adults and minors, "consensual" or not, is illegal in most states and immoral everywhere. The ACLU statement on the issue seems relevant,
"ACLU Statement on Defending Free Speech of Unpopular Organizations
August 31, 2000
FOR IMMEDIATE RELEASE
NEW YORK--In the United States Supreme Court over the past few years, the American Civil Liberties Union has taken the side of a fundamentalist Christian church, a Santerian church, and the International Society for Krishna Consciousness. In celebrated cases, the ACLU has stood up for everyone from Oliver North to the National Socialist Party. In spite of all that, the ACLU has never advocated Christianity, ritual animal sacrifice, trading arms for hostages or genocide. In representing NAMBLA today, our Massachusetts affiliate does not advocate sexual relationships between adults and children.
What the ACLU does advocate is robust freedom of speech for everyone. The lawsuit involved here, were it to succeed, would strike at the heart of freedom of speech. The case is based on a shocking murder. But the lawsuit says the crime is the responsibility not of those who committed the murder, but of someone who posted vile material on the Internet. The principle is as simple as it is central to true freedom of speech: those who do wrong are responsible for what they do; those who speak about it are not.
It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today.
"
To return to the original question on this thread, those advocating expressions of religious faith on public property implicitly assume the faith on public property will be Judeo-Christian. What would a realistic, constitutional proposal to allow Judeo-Christian faith while disallowing Satanists, pagans, Neo-Aztec, Wiccans, etc. look like.
Are proponents of private religious expression on public property prepared to walk past a Witch's Altar with dead cats and bats on their way to traffic court? What possible process would allow the 10 commandments and disallow the bloody Witch's Altar?
Would you establish a "Board Of Qualification For State-Permitted Religous Expression"?
Certainly, this is the swamp that founders wished to avoid.
Robin, my intended point was that nobody would ever argue that the first amendment originally was intended to restrict states. Its a two-step analysis: (1) how was the First Amendment intended to apply to the federal government and (2) how did the Fourteenth Amendment intend to make the First Amendment applicable to state government.
They might be pointing out that changing the 100+ year old city seal to remove the religious icon from it & the required modifications to everything the seal embosses costs thousands of dollars at a time where the money would be better spent on infrastructure. This doesn't also include the money spent defending the local government from the lawsuits in the first place.