Explicitly? Here is the whole of the 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.” I’m not seeing an explicit religious favoritism in that first part, no matter how some may want to interpret the underlying meaning .
When it comes to interpreting the First Amendment, are Scalia and Thomas the two brave Originalists that have it right…or are they just blowing smoke out their asses?
Their view seems sound to me, but so do the views of those who see a “wall” between religion and state. I’ve always viewed the establishment clause as preventing the government from doing a few things:
Establishing a national religion(duh)
Using public policy to favor some religions over others
Using taxpayer money to subsidize religious practice
Pass laws that are blatantly religiously motivated, even if there might be some secular justification
However, I don’t see a problem with things like the pledge or “IN God We Trust” on the currency, because it’s symbolic. Nothing about those things compels belief or religious practice. I also don’t see a problem with public officials bringing their religion into the public square, such as when Judge Moore put the Ten Commandments outside his courthouse.
But of course there’s a lot of disagreement with nearly all my points and I accept that.
Right here is the problem with both Scalia’s argument and, later on, yours.
Everything the government of the United States does that references God in the public sphere is an establishment of Christianity as a national religion. There’s no secret as to whose God “In God We Trust” and “under God” refers to; Scalia says so himself.
Religious references cannot be neutral, because there is no way to do it that doesn’t establish reference to a specific religion (“Specific” being a fairly broad categorization; “In God We Trust” does not, say, favour Southern Baptism over Catholicism.) Posting the Ten Commandments in a courthouse is pretty obviously not a nod to Hindu gods.
I’m not saying this sort of thing is as bad an intrusion as, say, your example of passing laws with a primarily Christian motivation, but it remains, at some level, an establishment of a religion.
I think it’s a bit broader than that: “In God We Trust” does not even favor Christianity over, say, Judaism, or Deism.
But I think your main point is correct. And when Scalia denies that “the government cannot favor religion over non-religion,” he’s wrong because you can’t draw a clear distinction between “favoring religion over nonreligion” and favoring some religions over others.
Scalia is wrong and secularists are wrong in their idea that removing references to God or ‘ceremonial deism’ type stuff represents a freedom from “religion.”
Ceremonial deism is basically the inclusion of Judeo-Christian imagery in American civil religion, not the establishment of Christianity (and Judaism) as such. Battles about it between our SCOTUS high priests and their supporters will be settled eventually and I don’t think the long-term trends favor Scalia’s side, but that is because of an evolution in what it means to be American, not from a somehow more correct interpretation of a 200+ year old amendment.
Prohibiting the free exercise thereof grows complicated when people see freedom of religion as a practice issue rather than a belief issue.
What the OP is asking is if the US First Amendment includes “Freedom from Religion”. “Freedom of Religion” can mean different things in different contexts.
Now, according to the current SCOTUS jurisprudence, it does not. The famous “Lemon Test” states explicitly that:
The statute must not result in an “excessive government entanglement” with religious affairs. (also known as the Entanglement Prong)
The statute must not advance or inhibit religious practice (also known as the Effect Prong)
The statute must have a secular legislative purpose. (also known as the Purpose Prong)
It is only “excessive entanglement” that is forbidden. Clearly some “entanglement” is allowed. What we are left to argue about is what constitutes “excessive”.
Now, there is also Epperson v Arkansas (1968) in which the decisions says “he First Amendment mandates governmental neutrality between religion and religion, and between religion and non-religion.” And yet the SCOTUS has not adhered to that strictly, allowing legislative prayer and even the 10 Cs (as long as they are part of a “historical” display). We continue to have Christmas as a federal holiday. We can put “In God We Trust” on our currency.
It has always seemed to me that the Court wants to have it both ways. To pretend as if religion cannot be favored over non-religion when convenient, but to ignore that rule when it is not. Whatever one thinks of Scalia, at least he’s being honest about the subject.
John Mace, I think it’s the second prong of the Lemon Test that most of these “freedom from religion” cases hinge on: “must not advance or inhibit religious practice.” When the government endorses one religion above the others, that’s advancing that one religious practice.
About Scalia’s comments, I’ve noticed that a lot of people on the Christian right interpret the phrase “freedom from religion” differently from how my side (like the FFRF) does. The right wing seems to think that we want never to have to see religion - that we should have the freedom to never be exposed to religion at all. Needless to say, that’s not how we see it. We just want the freedom not to have religion forced on us by the government.
And I like how Scalia takes the obvious view that the pledge (and presumably the national motto) honors the Abrahamic God. The “ceremonial deism” idea needs to go, it’s so obviously not what is meant.
Well, maybe the phrase “freedom from religion” is needlessly provocative and ambiguous. You never hear anyone talking about “freedom from speech” or “freedom from the press.”
I don’t understand what he means when he says that the government can “favor religion over non-religion” if they’re not allowed to make a law “respecting an establishment of religion.” The contradiction between those two statements is so powerful that I can only assume he’s either an idiot or a raging asshole not to see it.
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I also don’t see a problem with public officials bringing their religion into the public square, such as when Judge Moore put the Ten Commandments outside hiscourthouse.
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That’s odd. I thought that the courthouse of the Alabama Supreme Court was paid for by the taxpayers of Alabama. I wasn’t aware it was the Judge’s personal property.
I am a theist, but a polytheist (neopagan). The phrases “in God we trust” and “one nation under God” clearly exclude my religion, even though they include Jews, Christians, Muslims, Deists, and even many Pagans and (with a broad reading of what is meant by “God”) Hindus and Buddhists.
It is not merely symbolism to be reminded at every turn that my religion is illegitimate in the eyes of my society. I somehow doubt that Scalia would accord my religious views the same respect he gives Christian groups.
It seems to me this is blatantly violated when church property is made tax exempt, when in some states Bibles are exempt from sales tax (and only recently extended to other religious books), and possibly when the free rent given to some priests/ministers is not considered taxable income.
What does it mean to “establish” a religion? That’s the key, and it is not at all obvious. Historically, it did not mean favoring religion over non-religion, but rather it meant setting up a particular religion as the Official State Religion (as the CoE is in England).