It is the very first sentence of the Bill of Rights.
There was much consternation about the Constitution when it was being debated, and voted into existence, in the 18th century. Much of the resistance came simply from the objection that while it outlined the nuts and bolts of the structure of the government, it failed to get beyond the "what" to the "why" our government should even exist.
So its backers, Madison, Hamilton, promised to add the Bill of Rights, which addressed many of the resentments which had prompted the Revolution in the first place and which enumerated the specific stuff the Crown had done which Jefferson had described generally in the Declaration. Jefferson spoke of "abuses and usurpations" and "Despotism" but when he got around to listing what the King had done, he complained mostly about how laws passed locally were dismissed and how the king's judiciary owed no care but to please the king, not enforce the law. Then he gets on to the plundering of our seas, ravaging our coasts and destroying lives.
But mostly, Jefferson accused the King of violating the "inalienable rights" of Americans.
And what were those rights?
You had to wait for the Bill of Rights to learn that.
And the first rights, the First Amendment, starts off with an explosive leap onto the stage:
First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Of course, freedom of speech is the most basic of all, because without that none of the others can be had. It is the sine qua non of all rights. Oddly, it does not make its appearance until after two phrases regarding religion.
There may be many reasons for this ordering, but whatever else can be said, the importance of the relationship between government and religion is clearly an ascendant one. Maybe this is because religion is about authority, and if there is a state religion, then all that matters is not what men reason out for themselves but what someone speaking for God says is right. To free people to speak freely, you must first free them to think freely and that is why the First Amendment addresses both.
The two clauses, now called the "establishment clause" and the "free exercise clause" exist in tension with one another. This is because one man's free exercise of his religion may mean that he wants to force his religion on another man, and he may demand money from others to support his priests and church. And sometimes one man's religion violates the rights of other men: If a man's religion tells him as a white man he is superior to Black men, and has the right to enslave them, or has the right to educate his children in government schools which he denies to Black children, or if his religion tells him gay folks are committing grave sins and he should not have to allow them to stay in his hotel, then that means the folks his God inveighs against will be denied their own rights.
And then there is the question of what sorts of actions constitute the establishment of religion by the state.
In basic terms if a state or town or if the federal government declared: The religion of the town of Hampton is the Roman Catholic religion, ruled by the Holy See in the Vatican, few would have trouble seeing this as the establishment of religion.
England has an established religion as its law says The Church of England is the state religion, and the King is its head, which goes back to Henry VIII, he of many wives and the temerity to disown the pope.
Germany establishes "religion" without specifying any one religion: So in Germany 3% of your income tax goes to the church you register with. If you register with none, you don't pay that tax. That is establishment of religion in a different way, but presumably would be forbidden by the First Amendment in the United States, although with the current Supreme Court, this is not at all clear any more, at least until and unless the Democrats manage to pack the Court.
Thus far, in a series of cases about the separation of church and state, the Supreme Court has ruled for funding religion by the state consistently, claiming that to deny churches state funds would be to impair the free exercise of religion.
Most of these cases, if not all of them, have come down to cases where the government set up some sort of benefit for the children in a community or state which Justice Roberts describes as a "neutral benefit" which should be available to all, but which was then denied to children whose parents wanted them educated in a church school--so in the case of Everson, a town wanted to be sure all the kids in the town got a school bus to transport them to school, but not to religious schools; in a Maine case, public funds to attend private schools were made available when children lived in remote areas where there simply were no public schools, but not for attendance at a Christian academy; in Espinoza v Montana, it was a scholarship program available to all students, except those who wanted to use it to attend a Christian school.
In all these cases, the local governments sought to avoid giving taxpayer money to educate students in one particular religion and the Supreme Court struck that down. To deny these students the education they want because it is a religious education is to deny them the "free exercise" of religion, even if it means requiring other taxpayers to pay for that religious education.
Justice Alito, in his concurring opinion in Espinoza showed his hand baldly by railing on for some pages about all the indignities levied against his own Catholic church by the Jeffersonian infidels who demonized Catholic school education, an insult from which he has clearly never recovered.
He went so far as to incorporate a visual aide in his opinion, (which in all the Supreme Court opinions I've read I can never recall seeing before. ) It is a cartoon from an 1879 Harpers Weekly, depicting alligators with pope's hats for jaws, menacing children and public schools. Oh! The horror! He recounts that James Blaine in 1875 attempted to bar aid to any Catholic and other sectarian schools, and it was motivated by "virulent prejudice" against Catholics and supported by the Ku Klux Klan. He notes that though Mr. Blaine's perfidy did not manage to become an amendment to the United States Constitution, thirty eight states still have such amendments to their own Constitutions even to this day.
And you just know how Justice Alito will vote if cases challenging these state constitutions are brought! He virtually invites these challenges from the halls of the Court in Washington, D.C.
From here Alito links anti Catholicism to anti immigration feeling, as many immigrants were from Catholic Ireland and were viewed by "groups" as "soldiers of the Church of Rome." And newspapers claimed that Popery is the natural enemy of general education...if it is establishing schools, it is to make them prisons of the youthful intellect of the country."
Alito goes on for pages about how he is not simply defending the Catholic faith against the insufferable attacks of the past and present, but he is defending the indignities visited upon all immigrants. Justice Alito, you must understand, is not simply defending Catholicism, but all those downtrodden immigrants.
He notes that to be admitted to the Union, Montana had to pledge to institute public education "free from sectarian control." "Montana thereafter adopted its constitutional rule against public funding for any school, "controlled by a "sect." All this Alito places in the anti Catholic immigrant mindset.
Of course, New Hampshire's 6th Amendment has pretty much the same phrase, and it was adopted in 1784, long before immigration was on anyone's radar.
But no person shall ever be compelled to pay towards the support of the schools of any sect or denomination. And every person, denomination or sect shall be equally under the protection of the law; and no subordination of any one sect, denomination or persuasion to another shall ever be established.
It should be noted that this is contained in the "Morality and Piety" article, (Number 6) which is mostly about how religions should be neither favored nor inhibited.
So, Alito's argument that any attempt to draw a line between church and state is simply a smokescreen for virulent anti Catholicism seems a bit contrived, at least, and paranoid, at worst.
During the 2022 Hampton Deliberative session the warrant article which sets up a town taxpayer funded bank account for the Catholic Sacred Heart School (SHS), to be used to cover operating expenses of the school, so the Bishop of Manchester will not have to dip into his own accounts to cover the costs of computers, testing materials, glitter glue, sundry books (e.g. "The Giver") objections were made and amendments proposed.
One amendment, offered by a Hampton Lawyer, Erica DeVries, said simply that the same amount made available to the SHS should be made available to any private school in town which requests it. This was a very canny amendment because it cleaves so closely to the argument by Chief Justice Roberts that there are "neutral' ways to provide taxpayer government funds, i.e. if the funds are available to all.
But a citizen arose to object. "What if a church of Satan asked for such funds? I wouldn't want to have my taxes supporting THAT!" The amendment was promptly voted down.
Thus it was demonstrated at the Deliberative session that the citizens of Hampton were willing to support a church they liked, but not to spend taxpayer funds on a church they did not like.
"Let them get their own warrant article and see if they can vote it through!" One indignant citizen shouted.
So far, for the past 50 years, Hampton has given taxpayer money to only one religious or private school in town: Sacred Heart School.
"I don't understand this whole fuss," one citizen said. "I've lived in this town 50 years and nobody has ever objected before. This is the way we've always done it. People here like it. They've voted for it."
This was the same thing, one citizen noted, he had heard when he was growing up in the South--we've always had, always voted for, segregated schools. Who are these agitators who are objecting?"
What is striking about Justice Alito's argument is how emotional it is. Any attempt to separate state from church is ipso facto welling up from a despicable dark anti religious animus.
Jefferson, of course, looked across the Atlantic at Europe, riven by religious wars, and with Madison sought to avoid the same thing for America.
The ACLU, an organization founded mostly to defend the First Amendment right to free speech now quotes Justice Sonia Sotomayor's dissent in Carson: The Court, she says, "has led us to a place where separation of church and state becomes a constitutional violation." She notes the establishment clause, that clause which seeks to insulate government from religion is now viewed as hostile to religion.
In her dissent Sotomayor notes:
As a result, in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.
But if your religion tells you you are owed state taxpayer money, if your religion tells you you should not allow Black people to sleep on the same hotel beds as White people, where does that leave us?
As for the balance between government neutrality and the individual's right to practice, Sotomayor notes:
The Court’s increasingly expansive view., dissenting of the Free Exercise Clause risks swallowing the space between the Religion Clauses that once “permit[ted] religious exercise to exist without sponsorship and without interference. Walz, 397 U. S., at 669.
Do we not need to be protected against religious belief as much as religious belief needs to be protected against government intrusion?
And, the fact is, what religion is complaining about is not intrusion but the failure to intrude, the failure to fund religion.
Again, Sotomayor:
I do not understand today’s decision to mandate that SAUs contract directly with schools that teach religion, which would go beyond Zelman’s private-choice doctrine and blatantly violate the Establishment Clause. Nonetheless, it is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result.
What this is all about, in some way, is, in fact what Justice Alito says it is.
If you believe you can have a society which is just and fair and impartial and which operates with or without religion, then you are stating something which is antithetical to most religious belief. Virtually all religions insist that religion is indispensable, that religion must be made central to civic life, and if you deny this you are anti religion. Those who insist on government remaining independent of religion are arguing that we can do without it, they are agnostics, or worse, atheists.
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| Hitchens |
This is the central argument Christopher Hitchens often made: Do we need religion to know right from wrong? Hitchens argued, and I fully agree, we do not.
We know that slavery is wrong simply looking at those miserable human beings standing on the auction block. We do not need religion to tell us this and in fact, it was religion which found Biblical reasons to endorse slavery. The most ardent slavers were religious men and women.
Speaking of the zealots who flew their airplanes into the World Trade Center, of the jihadists who chop off the head of reporters, or school teachers in front of their students, Hitchens noted, only religious people would do that. The most horrific things in history have been done by people, thought they were doing these hideous things because they were commanded by God to do them, people who, without religion, would have known from simple decency, they should not have done.
The classic story is, of course that of Abraham who takes his son up on the mountain determined to slit his son's throat because, of course God had commanded it. No unreligious person would ever consider slitting the throat of his own son. Only to a religious person does this make sense.
So, yes. To oppose religion as the basis of American life is, in a very real sense, anti religious.
But to insist on the separation of church and state does not require you to be anti-religious, and in fact this neutral posture has worked for over 200 years; it has been simply a practical solution to different beliefs, to allow all religions to co-exist without joining a religious fight.
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| Onward Christian Soldiers |
As for the Constitution and the Law, what the Supreme Court has demonstrated is the system is rigged. You can pass whatever law you wish, you can enshrine in your state Constitution a separation of church and state and the Catholic justices on the Court will find a twist to make a new law which completely reverses the law you have passed. In fact, the law, the Constitution is now only what the Court says it is. No matter what the text says, the Court will find a way to see its own prejudices enshrined right there.
The classic example was Justice Scalia looking at the Second Amendment which says "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," and he ignores the first part about the militia and goes on for pages about the possible meanings of the word "people" only to conclude, in the end, this text means every citizen is guaranteed the right to own a howitzer (Heller vs DC). It's all right there in the text, the original meaning of the text!
You don't need 3 years of law school to see that grift.
Some have argued that given the current Court's attitude about separation of church and state being unconstitutional, that does, in fact make separation of church and state unconstitutional. What is constitutional is, in fact, whatever the Court says it is.
But this is wrong, and it is wrong on the current Court's own terms. This Court has rejected the whole idea of stare decisis, the idea that current cases be judged with reference to precedents, i.e. prior decisions. In Dobbs, the Court said that Hugo Black simply got Roe wrong. So, we can now say this Court has got Everson and Espinosa and the other cases about separation of church and state wrong. They got these cases wrong because they were blinded by their own Catholic upbringing and because they knew they had the power as a 6 to three Court to do whatever they wanted to do.
A new Court, with say 4 additional justices, could very easily see this Court's misdeeds and reverse these contemptible rulings. Now that stare decisis is dead, we can say that prior Courts simply got it wrong and move on.
As Justice Sotomayor says:
What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Trinity Lutheran, 582 U. S., at ___ (dissenting opinion) (slip op., at 27). Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.
Now, we are rushing into a history we are doomed to repeat.
God help us.
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