As I recently wrote, the US Supreme Court recently chose to further weaken the Establishment Clause of the First Amendment.
Although I believe that slippery slope arguments are weak in isolation, the history of erosion of state-church separation in the US over the last 30 years suggests that such arguments are valid. As Katherine Steward wrote yesterday in The New York Times, the strategy of the religious right is becoming clear. Since a full frontal assault is not feasible, they have taken the long view and are chipping away at the wall of separation case-by-case. Some might wonder: “What’s the harm? After all, it’s just a simple prayer. And it happens to coincide with the beliefs of the majority.” And the religious right would never seek to impose a full-scale state religion right? It doesn’t really fit with the narrative about our country that we’ve taught our children. In fact, we’ve tought it for so long, we’ve forgotten the truth.
Religious liberty vs. religious escapism
The US was founded not on the principles of religious liberty but on religious escapism. The Puritans came to the New World because they we dissatisfied with the Reformation of the Church of England. Their American settlement was little more than a separatist religious movement. The laws they established clearly reflected their monolithic religious beliefs. Tolerance was not a virtue of the early settlers. In 1697, the Massachusetts Bay Colony passed An Act against Atheism and Blasphemy which stated:
“Be it declared and enacted by the Lieutenant Governor, Council and Representatives, convened in General Assembly, and it is enacted by the Authority of the same, That if any Person shall presume willfully to blaspheme the holy Name of God, Father, Son, or Holy Ghost; either by denying, cursing or reproaching the true God; his Creation or Government of the World: or by denying, cursing, or reproaching the holy Word of God … Every one so offending shall be punished by Imprisonment, not exceeding six Months, and until they find Sureties for the good Behaviors; by sitting in Pillory; by Whipping; boaring thorow the Tongue, with a red hot Iron; or sitting upon the gallows with a Rope about their Neck; at the Discretion of the Court of Assize, and General Goal Delivery, before which the Trial shall be; according to Circumstances, which may aggravate or alleviate the Offence.”
And while Maryland, with its Act Concerning religion, also known as the Maryland Toleration Act, of 1649 permitted freedom of worship for Trinitarian Christrians (Catholics, basically) it still condemned persons who denied the divinity of Jesus Christ or the Trinity to death or loss of property.
The forgotten Enlightenment
In the mid to late 1700’s along came the men we call the “Founders” or “Framers.” Most were religious in some complicated way. Often they were more like Jefferson, Deist and skeptical of organized religions. What they codified in the First Amendment is clear. They intended a wall of separation as Jefferson wrote between religion and government. While the Framers were clear on their intent, the views of the citizenry were hardly uniform. Pockets of theocratic government remained. New York state, in particular, was a hot-bed of religious ferver; and the wall of separation was much more porous than originally intended. In 1811, a man named Ruggles was tried for the crime of blasphemy. In reciting the facts of the case, it was said that:
“The defendant was indicted … in December, 1810, for that he did, on the 2nd day of September, 1810 … wickedly, maliciously, and blasphemously, utter, and with a loud voice publish, in the presence and hearing of divers good and Christian people, of and concerning the Christian religion, and of and concerning Jesus Christ, the false, scandalous, malicious, wicked and blasphemous words following: “Jesus Christ was a bastard, and his mother must be a whore,” in contempt of the Christian religion. … . The defendant was tried and found guilty, and was sentenced by the court to be imprisoned for three months, and to pay a fine of $500.”
In Ruggles, the chief justice acknowledged that no specific laws prohibited such speech; but that “we are a Christian people and the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines or whorship of these imposters.” Since there was no such law, he openly decided to use English Common law as his guide. (Which of course is ludicrous in contemporary judisprudence.)
That’s all in the past, right?
In 2007 George Kalman, a resident of the state of Pennsylvania attempted to register a film company under the name “I Choose Hell Productions LLC.” His request was denied under a state law barring “words that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name” in corporate names. Kalman sued in Federal DistrictCourt and won. In the decision, Judge Baylson wrote:
‟All told, the Blasphemy Statute’s plain language, historical context, and the specific sequence of events leading to its passage inevitably lead to the conclusion that, objectively speaking, the statute was introduced and passed into law with a predominantly religious purpose. … Pennsylvania’s Blasphemy Statute, however, unequivocally excludes only one religious perspective but not the other, as it permits speech deemed reverent to religious beliefs, yet excludes speech deemed irreverent to religious beliefs. \“Choosing hell\” may be an irreverent choice for a corporate name, but under the Constitution, this fact alone cannot be the basis for its suppression from the public debate. Consequently, the Blasphemy Statute is \“alien to the tradition of disestablishment of which the First Amendment is only a part." ”
Judicial sleights of hand
Among the many problems with the most recent case are the mental gymnastics one has to go through to understand what’s private speech and what’s government speech. As Ms. Stewart puts it:
“Thus, when the minister appointed by the municipal government of Greece bids “all rise,” the Supreme Court majority tells us, this is not an establishment of religion because the words are not uttered by public officials. And when the town leaders respond with a sign of the cross, that isn’t establishment either, because, just then, public officials are acting as private individuals.”
In other words, according to the majority opinion, there’s no entanglement because public officials - in the course of an official public meeting somehow magically transform back-and-forth between private individuals and public officials. But without any placards or other indications, how are the citizens in attendance to know what utterances are private speech and which are not? Again, in Greece v. Galloway we know that private citizens are required to come before the town council to conduct certain forms of business. They have no choice but to listen to publically-endorsed religious speech. This is clearly entanglement.
A simple solution
Don’t have government-organized prayers at public meetings. Simple.
The Free Exercise Clause guarantees that individuals have the freedom to assemble and worship as they please without undue interference from the government. By all means, take advantage of that. And be satisfied.
1811 NY The People v. Ruggles, 8 Johns 545 (Sup Ct N.Y. 1811). For an interesting analysis of The People v. Ruggles, see The Consitutional Principle: Separation of Church and State ↩
Lest any revisionist attempt to use Ruggles to claim that they wall of separation is mythical, take a look at the 1853 Ohio Supreme Court ruling in Bloom v. Cornelius. There the court’s opinion states: “Christianity is a part of the common law of England, but, under the provisions of our constitution, neither Christianity nor any other system of religion is a part of the law of this state.” ↩