Friday, July 26, 2013

Some thoughts on separation of church and state

It has recently struck me how many liberals have spoken in favor of getting rid of laws with a religious basis. In the name of separation of church and state, many liberals try to get rid of laws against gay marriage by pointing to the religious basis of many arguments supporting them.

This seems to me a fundamentally flawed interpretation of separation of church and state, for the following reason: Many laws supported by atheists and agnostics are, for many people, grounded in religious belief. The Ten Commandments say "Thou shalt not kill" (the basis of laws against murder), "Thou shalt not steal" (the basis for laws against theft), and "Thou shalt not bear false witness against thy neighbor" (the basis for laws against perjury). If we were to discard any law with a religious basis, we would have to do away with laws against theft, perjury, and murder, which are supported largely on the basis of religion. The harm to society of doing such is self-evident, and so clearly, discarding laws with a religious basis is unwise.

It might be objected that such laws can be opposed on non-religious grounds. But I would dispute this as well - and before my atheist and agnostic friends do the online equivalent of stomping out of the room dismissively, ask yourselves if you can measure morality objectively the way you can distance, time, or temperature. Is there a yardstick, a ruler, a stopwatch, or a thermometer that can quantify how moral something is? Can we say that stealing from a candy store is five units of moral good or evil, or fifty, or five hundred?

If you answered "no" to any of these questions, you will see that the quantitative methods of hard science, despite their value, are of no use in such measurements. Something else is required - a faith in an intangible, so to speak. And what is this but religion?

Anyone that makes value judgments - such as gay marriage is good, or opposing it is wrong - is being religious. Few atheists or agnostics will admit this, of course, but I've yet to meet one who could refrain from value judgments for an hour, let alone permanently. Their opinions on everything ranging from politics to Christianity to music testify of their faith in an intangible - namely, values. As my wise father once said, "All people are religious, but not all of them know it."

So the idea that theft, perjury, or murder could be opposed on non-religious grounds is, to me, absurd. The minute you speak of such things as "wrong," "harmful," "immoral," "unethical," or "unwise," you are entering the realm of religion. The interpretation of separation of church and state saying that any law with a religious basis should be opposed is thus fundamentally flawed, and should be rejected without shame in the rejection's religious basis. The irresistible human urge to put faith in intangible values should be considered as a source of pride, and worn as a badge of honor. And this concludes my discourse on the separation of church and state.

The First Amendment: Protecting religion from government (and not the other way around)


  1. Your post is predicated, I think, on a misconception. The constitutional separation of church and state does not prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

    Confusion understandably arises because the constitutional principle is sometimes equated with a widely supported political doctrine that goes by the same name and generally calls for political dialogue to be conducted on grounds other than religion. The underlying reasons for that political doctrine are many, but three primary ones are that (1) it facilitates discussion amongst people of all beliefs by predicating discussion on grounds accessible to all and (2) it avoids, in some measure at least, putting our respective religious beliefs directly “in play” in the political arena, so we’re not put in the position of directly disputing or criticizing each other’s religious beliefs in order to address a political issue and (3) since the government cannot make laws or decisions with the predominant purpose or primary effect of advancing religion, it makes little sense to urge the government to do just that. This political doctrine, of course, is not “law” (unlike the constitutional principle, which is), but rather is a societal norm concerning how we can best conduct political dialogue in a religiously diverse society. Reasonable people can disagree about whether the doctrine is a good idea or not and whether or how it should influence us in particular circumstances.

    Wake Forest University has published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you.

    1. I agree with almost everything you say, and I take exception with but two things. One is that the primary purpose of a law must be nonreligious or secular in nature. As I said in my post, I believe anything based on values to be religious, and I think it's impossible to find a law that is not religious in some way. For many Christians, laws against murder are primarily based on religion, and so your interpretation would seem to require those laws to be discarded.

      The more cogent interpretation of separation of church and state, in my view, seems to be that there shall be no “establishment of religion” (in other words, an official state-sponsored church) or “religious test” for office (where particular religious views are made required qualifications). Anything more than this seems to be extraconstitutional.

      The other disagreement is the idea that my post is predicated on the misconception you mentioned. My post seemed to me to argue AGAINST this misconception, the same as you do; and takes the same position you do that it is, in fact, a misconception. So other than these things, I'm not really sure where our disagreement is. We seem generally to be agreeing.

    2. I think you misapprehend my point about what the constitutional separation of church and state precludes. While laws against murder may coincide with religious beliefs (of Christians and adherents of many other religions), society has any number of nonreligious reasons to outlaw murder. Accordingly, the constitutional separation of church and state does not, in the least, stand in the way of such laws.

      While the First Amendment undoubtedly was intended to preclude the government from establishing an official state religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. Separation of church and state is hardly a new invention of modern courts. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.

  2. I agree that the separation of church and state does not stand in the way of murder laws, but I think adopting your interpretation of it would. You argued that “the predominant purpose and primary effect must be nonreligious or secular in nature,” when for many Christians, the predominant purpose of murder laws is religious – i.e., compliance with “Thou shalt not kill.” Even under a more restricted definition of religion (like the kind I would presume you use), judging laws on their “predominant purpose” would seem to preclude anything supported by such religious documents as the Ten Commandments. This seems to me a faulty standard for interpreting the separation of church and state.

    You also argued that “society has any number of nonreligious reasons to outlaw murder.” But as I've made clear in my post, I believe that anything based on values is religious. For atheists and agnostics as well as Jews and Christians, murder laws are based on values – namely, life and security and other things. I cannot conceive of any law that is not religious in some way. If the law mandates doing something, it places a value on that thing. This seems to me like religion. If the law forbids doing something, it holds that thing as having NEGATIVE value. This also seems to me like religion.

    Nonreligious things would include scientific things which can be demonstrated – i.e., John is six feet tall, Jane can run a mile in four minutes, the local temperature at 5pm is fifty degrees, the theory of gravity explains the motions of the planets, DNA can be used to identify someone, etc.. Values cannot be demonstrated. So the very nature of law (mandating or forbidding things), being based on such intangible and unquantifiable things as values, seems religious to me. Thus it seems that society cannot possibly have nonreligious reasons to outlaw murder; or for that matter, anything else. Many different governments have had very different views of the act of murder, and our society's value on individual human life seems like something relatively new. That it has not been universally adopted throughout history helps show that it has been accepted on values, and is not a universally recognized outcome.

    1. What you suppose is my interpretation is not mine; it is the courts' understanding and application of the constitutional principle. The Wake Forest paper offers a handy summary. As understood and applied by the courts, the principle does not preclude laws about murder and such.

      If I understand you correctly, you have your own different conception of what is the "predominant purpose and primary effect" of the law against murder and by your reckoning they are "religious." All I can say is that your conception is not how the courts actually go at it; they apply that predominant purpose and primary effect analysis much differently than you do. They recognize that states have lots of nonreligious reasons to prohibit murder, e.g., to keep the peace, maintain the population and the economy, promote the health and general welfare of the people, not burden the public fisc cleaning up the mess, etc., etc., etc. The fact that the prohibition of murder also happens to coincide with religious views does not mean that the law's predominant purpose and primary effect is to promote religion--at least that's the what the courts' have in mind when they apply that test. I think that what they mean by "religious" and what you mean are two different things.

  3. That was very interesting, and I think it is a good summary of legal history from someone who knows more about it than I do. But that's not what I was talking about. I was talking about something more basic, which is the philosophy of morality. Certainly morality and values are religious in nature, and no one can make the argument that they have been understood the same way by all societies at all times. Clearly they have NOT been. The idea that there is some abstract standard of morality, which is nonreligious and everyone agrees upon, is mythical and ridiculous.

    You are likely right that the courts have a different definition of religion than I do, and a different understanding of the constitutional principle. But though courts are ultimate authorities on what is legal within our country, they are not ultimate authorities on right and wrong. It would be an act of blind faith indeed to say that everything courts do is well-reasoned or ethical. Your reply against my arguments is essentially based on judicial trustworthiness, and this seems to me a faulty foundation for wise policy.

    You list a number of motives for prohibiting murder which you claim are nonreligious. They are legitimate motives, to be sure, but all of them represent values and are thus religious. Let us examine your list for a moment: “to keep the peace, maintain the population and the economy, promote the health and general welfare of the people, not burden the public fisc cleaning up the mess.” All of these are values in every sense of the word. You and I can both agree on them, and I share your belief in these things, but they are religious in nature. Many different religions would agree on them, and many atheists and agnostics would show their support for them; but that does not diminish their religious nature.

    As I've said, anything based on values requires a certain amount of faith, because they cannot be demonstrated with empirical evidence the way distance, time, or temperature can; or the way that a scientific theory can be established. Thus, I would argue that any values like the ones you have mentioned are religious. In my view, it's impossible to find support for law (or any other system of policy) without recourse to such intangible things as values; and it seems to me that all value claims are religious in nature. Thus, requiring nonreligious purposes for law (“predominant” or otherwise) is an impossible endeavor, and an unreliable standard for separation of church and state.


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