Does America Still Need the Establishment Clause?

Great Debates
1

“Congress shall make no law respecting an establishment of religion.” Amendment I, Constitution of the United States.

When the Founding Fathers wrote that line, they had the experience of Great Britain, and Europe as a whole, in mind. The Church of Ireland that had oppressed Catholics, the Church of England that had been used to keep Dissenters, Jews, and Catholics out of government, the Church of Scotland that had provoked virtual civil wars with the Covenanters, Bloody Mary’s burning of Protestants, Louis XIV’s dragonnades, etc. With good reason, they felt that a state-established religion was a Very Bad Thing.

Come 200+ years later, however, I believe two things.

  1. England still has an official, state-established church.

  2. England enjoys religious liberty that matches up very well with America’s. In both countries, you can pretty well pray to any faith you choose, preach any faith you choose, build a church/temple to any faith you choose, or speak out against any faith you choose.

I am not going to argue here that America should abandon the Establishment Clause, chiefly because I can’t imagine any earthly benefit from doing so. (I’m an atheist, so that figures). But what good, truly, does it do? Are those who say that the establishment clause is the only barrier between America and theocracy any better substantiated than those who say the 2nd Amendment is the only barrier between America and dictatorship? Or is the Establishment Clause (again like the conservative view of the 2nd Amendment) a sort of insurance policy that England has done without and yet remained free?

Or perhaps my view of England’s religious liberty is too rosy?

2

I may be completely wrong about this, but nowhere in the Constitution does it say that there should be a separation of church and state. The Supreme Court, I believe, came up with the idea of the separation and I imagine it is somehow connected to the “establishment clause”. If so and we did away with the “establishment clause” would that not make separation of church and state come into question? (note I didn’t say slippery-slope!).

3

England does have a formal law proclaiming freedom of religion and belief, passed in 1998 as part of the Human Rights Act. This act really just codified a lot of case law and piecework law granting freedom of conscience to various groups.

If you think that the Establishment clause is largely irrelevant today, remember that it’s the separation of church and state that prevents creationism from being taught in science classes as an “alternative” to evolution.

4

Without the Establishment Clause, there is no separation of church and state. Assuming the other parts of the First Amendment are left intact, the state would not be able to make it illegal to practice any religion or to express any religious opinion, but the state could establish a particular denomination as the Official Church, and tax all citizens to pay for it. Of course, the state would still be subject to the check of democratic elections, and it’s not likely the voters would vote for that–then again, that argument could be used for all of the guarantees in the Bill of Rights, couldn’t it? (“Oh, The People would never vote for censorship”–or “witch burnings” or “having people shot without trial”.) The state could do all sorts of things short of establishing an official Church of America–it could register all citizens as members of whatever church they were born into, and finance those churches via payroll deducations, just like Social Security or the income tax, unless citizens specifically demanded to be opted out of the system. I believe Germany has or had a system somewhat like this.

Supporters of SOCAS have a strong suspicion–reinforced by much history–that separation of church and state is the best guarantee of religious liberty, and that reducing or eliminating that separation puts religious freedom (and other freedoms, like freedom of speech) in danger.

Of course Germany is hardly a theocratic hellhole. Neither is England, which still has a full-fledged state church. But the coexistence of state churches in England (and some other European nations) with religious freedom and general personal liberty is partly a happy accident of history. It wasn’t always that way–they did used to kill and torture each other over religio-political issues in England. Even as late as the 19th Century, Catholics, Protestant “dissenters”, and atheists were barred from being in Parliament, attending Oxford and Cambridge, etc. The Established Church in England is a vestigial church, a relic of the past. (It may not last much longer either, as it’s becoming increasinly demographically irrelevant, and England is becoming more religiously diverse.) A Church of America might eventually become as benign–after a thousand years of civil strife. And Germany isn’t the U.S.–the U.S. is both fervently religious and mind-boggling diverse in its fervency. Many European countries are more or less mono-sectarian or oligo-sectarian–everyone is Catholic or Lutheran or Calvinist (or at least traditionally so–in many Western European countries these allegiences are pretty nominal), or else the population is divided between two or three groups (Catholic and one or two Protestant traditions side by side, but not the fantastic array of sects, denominations, and independent churches we have here). Opening up that can of worms here would be a huge mess–pork barrel politics and American sectarianism–yikes!

SOCAS is also just the right thing to do–it’s wrong to make atheists pay for the Federal Bureau of Missions and Evangelism (or anything tantamount to that). It’s wrong to make Christians pay for the State Ministry of Atheist Propaganda. This is so even if atheists and Christians aren’t actually thrown in jail for their opinions (unless maybe it’s for tax evasion when they refuse to pay for the Federal Bureau of Missoins and Evangelism or the State Ministry of Atheist Propaganda). People shouldn’t be second-class citizens in their own country on account of their religious opinions.

Finally, a couple of quotes from one of our Founding Fathers (cue patriotic music and picture of waving Star-Spangled Banner):

“Who does not see that the same authority, which can establish Christianity in exclusion of all other religions, may establish, with the same ease, any particular sect of Christians, in exclusion of all other sects; that the same authority, which can force a citizen to contribute threepence only of his property, for the support of any one establishment, may force him to conform to any other establishment, in all cases whatsoever?” – James Madison, the Memorial and Remonstrance (that link, incidentally, is to the homepage of a church.)

“…it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution.” – James Madison again (actually, this quote is also from the Memorial and Remonstrance–but this link goes to a bunch of atheists…)

5

kniz wrote:

Sigh. No, the words “separation of church and state” do not actually appear in the Constitution. However:

[li] Thomas Jefferson, while President, wrote a letter to the Danbury Baptists in which he said that the Establishment Clause and the Free Exercise Clause of the first amendment, taken together, “created a wall of separation between the church and the state.”[/li]
[li] The phraseology caught on.[/li]
[li] The U.S. Supreme Court thought that the term “separation of church and state” was an apt descrption of what the first two clauses in the First Amendment expressed, and have used the term off-and-on ever since.[/li]
The Supreme Court uses other terminology that does not appear in the Constitution when discussion Constitutional principles, too. They will sometimes say that the Fourth Amendment implies a right of privacy, even though the word “privacy” never appears in the Fourth Amendment. They divide Federal taxes into “direct taxes” and “indirect taxes,” even though the phrase “indirect tax” never appears in the Constitution. The “separation of church and state” is no different – and it’s faster to pronounce, and a more expressive phrase, than saying “the Establishement and Free Exercise Clauses of the First Amendment taken together.”

6

MEBruckner, excellently presented. Bravo.

In the USA, the absence of the “establishment” clause, leaving the 1st clause of the 1st amendment reading “Congress shall make no law restricting the free exercise of religion” may not lead to “theocracy” (any more than Oficially-Catholic Costa Rica and Spain are theocracies, or that Britain or the Oficially-Lutheran Scandinavian countries are…). Besides the injustice of forcing support of the State Church (or Non-Church), another line of thought behind the “establishment” clause is that even if there is no realistic short- to mid- term chance whatever of a State Church, the very idea of the kind of nation that is founded on the US Constitution requires that right off the bat it declare that it will, may, can, never even consider doing so. That if this nation will claim with a straight face that it’s founded upon the Idea of Liberty, and not a mere lousy tribal identity, and that it assures a level playing field for ALL including those of no faith, the State must be disabled from ever officially endorsing any religion or group of religions.

jrd

7

Even as late as today Catholics are barred from becoming or marrying the monarch.

Having nearly had my head smashed in by Protestant bigots in the U.K. earlier this evening, I am not inclined to discount the role that an official state religion plays in seeming to give sectarianism an official seal of approval.

8

You’re kidding, right?

This may be a logical fallacy, but can you IMAGINE the gleeful orgasms of Pat Robertson and Jerry Fallwell were the Establishment Clause done away with?

9

So what’s your plan when the state-sponsored religion’s functionary…er, priest preaches a diatribe from the pulpit against another religion? Doesn’t that smack of official disdain?

Yes, I actually got to hear one of those when I was attending a Church of England service back in 1982 in Preston, England.

10

Okay, I’m a bit too young to remember this personally, but weren’t there some complaints about JFK’s Catholicism when he was elected President? (I’m hoping I recall my AP US History class right) The United States is predominantly a Protestant country. Church and State are not quite as separate as one would think.

The Establishment clause has been used very often to protect personal religious rights in court. Even though it technically only applies to the Federal Government (Barron v. Baltimore, 1833), it has been used to prevent public school districts from requiring Christian prayer (Engel v. Vitale, 1962 and Abington Township v. Schempp 1963). I have nothing against prayer in schools but as a non-Christian I was always glad that the public schools I went to could not require me to pray to God. (the Pledge of Allegience is a whole different matter)

The Establishment clause allows nontheological conscientious objectors (Welsh v. the United States of America, 1970), establishing a precedent wherein freedom of religon includes freedom from religion.

The important thing is that the Establishment clause grants a certain degree of religious freedom at a legal/judiciary level, to which one can appeal if one’s rights are being violated. This does not mean that I can go up to my boss, ask for the equinoxes and solstices off, and expect my job to be there in the morning. But it means that if the government begins to restrict my religious freedom (and it will, judging from Dubya’s work so far) I at least have something to point to when I complain. Not that I’d get anywhere, but I’d have something to point to.

Okay, I’ll shut up now. :slight_smile:

11

I really don’t see any benefit to getting rid of it, and while there probably won’t be disadvantages to getting rid of it, why take the risk?

12

Even if the government could resist any urge to require everyone to obey the doctrine of the official religion, the government’s endorsement of it would make other faiths seem abnormal.

13

The separation of church and state was first developed, (to the best of my knowledge) by John Locke. It is very interesting that Locke proves in his essays that it is God himself that dictates the separation. Without going into too much detail, the argument goes like this. Government being a man made institution, can not say what God’s work is. Only God himself can do that. Therefore any state supported religion, would be at the mercy of what the rulers said to be the “word” of God. Since religious ideals are often seen differently by different people, the creation of a state church would corrupt the very foundations, and principles of anyone’s God. This is quite frankly the most compelling argument supporting this doctrine.