Tuesday, July 14, 2015

Religious Liberty Series Compendium

The following is partially cross-posted at Meridian Magazine

Tax Churches? Not So Fast
Ryan Larsen

To understand the importance of religious liberty, think about two facts. First, to God, all things are spiritual. Second, it is important that the Lord’s Church have open lines of communication with people, unfettered by government control.

Religious liberty is not only a right protected by the United States Constitution, it is a reason why God's hand set in motion the events which established the United States. It’s obvious, though, that the very idea of religious liberty is being challenged with increasing frequency.

One example of such an attack is the argument that we should tax churches who communicate about certain subjects. Many people fail to realize what it means to be a constitutionally protected body. The constitution recognizes that the government and churches operate in separate spheres. Taxing a church would be like taxing a city or state government. It doesn't make sense.

Some argue that any organization which voices a political opinion is somehow crossing a line and must “pay to play.” This argument falls flat for three reasons.

First, it conflates the tax-exempt status of religion with that of non-profit groups. The latter is an arbitrary act of goodwill on the part of congress and is subject to being just as arbitrarily rescinded (i.e. the status is not necessitated by any constitutional freedom). In contrast, the former is part of a constitutional mandate that exercise of religion be "free" - "free" as in not purchased, taxed or otherwise abridged. People do not need to pay to practice religion – it is free, in a public sense.

Second, if a religion voicing doctrine related to state affairs (as opposed to claiming authority over state affairs) violates separation between Church and State (which it does not, but “if” it did),  then that would be true regardless of whether the church paid taxes or not. So the issue of what Churches can and cannot say is unrelated to the issue of whether Churches can or cannot be taxed.

To claim that paying taxes somehow “fixes” a Constitutional problem is to say the establishment clause has a “selling of indulgences” exception.

The state can no more give to a church in exchange for taxes the right to violate "separation" than it can sell to a private citizen the right to be elected at the age of 20 to the office of President of the United States. Either the act itself is prohibited by the constitution, or it is not. Taxation is moot.

Third, the argument completely ignores the tax exempt status of organizations which make political statements all the time, such as the Democratic National Committee, the Republican National Committee, and, in the case of our current President at the time of this writing, the Obama Administration’s Organizing for Action (the successor organization of the president’s reelection campaign).

Would it make any sense at all to look at the money in campaign coffers and say that it must be taxed because the organization makes political statements? No. There is no reason to tax anyone on the basis of their speech, whether that speech is political or not.

It is time to set the record straight and to assert the rights we have as religious people. 

Religious Liberty Series Part One
Thanksgiving and the Constitution: Some Facts People May Not Be Aware Of
Ryan Larsen

The U.S. government specifically set aside Thanksgiving as a day for public acknowledgment and gratitude to God, with wholehearted official government acknowledgment of and expression of gratitude to God. Days of Thanksgiving to God had also been practiced in Pilgrim days and Colonial days, but origins within the U.S. government extend back to 1776, soon after our nation's independence had been declared, when Washington and his troops stopped and held a Thanksgiving to God near Valley Forge.

The Founding Fathers celebrated Thanksgiving as an official U.S. holiday under resolution of the first Congress. This same session of Congress drafted the Establishment Clause of the U.S. Constitution, and, significantly, passed the Thanksgiving to God resolution after drafting the clause. Therefore, according to standards of Jurisprudence relating to consistency of actions of a legislative body within the same session, the establishment clause cannot be interpreted as prohibiting Governmental acknowledgment of God.

Let us examine the background.

Elias Boudinot proposed the day of Thanksgiving to God. The following is from the annals of Congress Sept. 25, 1789:

 Mr. Boudinot said, he could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining, with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them.

Embracing the idea, Washington proclaimed, "It is the duty of all nations to acknowledge the Providence of Almighty God" and officially assigned Nov. 26 "to be devoted by the people of these states to the service of that great and glorious being."

This was the first official proclamation of any U.S. President.

From time to time, the U.S. government celebrated other days of Thanksgiving. Abraham Lincoln made Thanksgiving an annual event, setting it apart as "a day of thanksgiving and praise to our beneficent Father who dwelleth in the heavens."

These days, people may take for granted or may not be aware of the religious nature of Thanksgiving, but even if people were to outright intentionally refuse to celebrate it or even if we abolish the holiday altogether, my point would still stand. The same session of Congress that drafted the first amendment set apart a day for all U.S. Citizens to give Thanks to God. Therefore, the First Amendment’s framers did not believe it prohibited public acknowledgment of God.

Religious Liberty Series Part Two
Thomas Jefferson and the Establishment Clause
Ryan Larsen

Some may see a contradiction between the actions of the founders in creating Thanksgiving and Thomas Jefferson's famous claim that the religion clauses of the first amendment create “a wall of separation between church and state.”

However, a general mandate for “separation between church and state” has no basis from a straight reading of the text of the establishment clause, whose purview only extends to prohibiting Congress from making a specific type of law.

In fact, it sounds like Jefferson was saying that it is the prohibition on Congress which constitutes “a” wall, not necessarily a wide wall or an absolute wall, just “a” wall of separation between church and state. In other words, Jefferson was describing the prohibition on Congress rather than claiming that that prohibition extends beyond congress or demanding that anyone separate Church and State in any kind of general way.

Moreover, Jefferson's letter to the Danbury Baptists (in which he coined the phrase “a wall of separation between church and state”) was itself official correspondence on behalf of the government, which is significant because he ends the letter with “kind prayers for the protection & blessing of the common father and creator of man.” So, using Jefferson's standard, government correspondence, even to private individuals and groups, can freely include assertions of God. If the government wants to, it can use public stationary and postage to send every American a Thanksgiving card expressing “kind prayers for the protection and blessing of the common father and creator of man.”

Now, you might say, maybe Jefferson's letter wasn't official correspondence on behalf of the government. But then in that case it would have no place being used as the official standard for interpreting the establishment clause.

Did Jefferson not understand his own idea of “separation between Church and State” or is it more likely that government acknowledgment of God does not violate the separation between Church and State?

We may find the definitive answer to that question in the reason why the U.S. Supreme Court chose to defer to Thomas Jefferson as the authority on the Establishment Clause. The Court deferred to Jefferson because Jefferson wrote the law upon which Congress based the Establishment Clause, the Virginia Statute for Religious Freedom.

However, that very law acknowledges God and does so explicitly. In other words, the law written by Thomas Jefferson makes the claim that God exists. Jefferson’s statement is authoritative to the Court because he is the author of a law that acknowledges God. If that law which says God exists is not valid, then “separation between church and state” is not authoritative. We cannot therefore say that “separation between church and state” prohibits government from acknowledging God, as that would mean that “separation between church and state” prohibits the very law whose validity is necessary in order for “separation between church and state” to be authoritative.

The statute in question, which served as the basis for the religion clauses of the First Amendment, begins:

Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do...

Yes, the very man who the U.S. Supreme Court cited as the authority on the meaning of the Establishment Clause, put the explicit acknowledgment of God into the law.

Thanks to Thomas Jefferson, the government not only acknowledges God but sets forth certain doctrines: that God is Almighty, that God created the mind free, that God has a Holy plan, is Lord both of body and mind, etc. And all of these things are necessarily valid if “separation” is authoritative.

As mentioned earlier, the Establishment Clause itself only limits congress. The Clause does not however say that congress, let alone any other branch or representative of government, cannot officially acknowledge God or make laws acknowledging God. God is Himself not an “establishment of religion.”

Religious Liberty Series Part Three
How “Separation of Church and State" Took on Legal Significance
Ryan Larsen

Now, it's true that the U.S. Supreme Court decision in Everson v. Board of Education mentions much more than just Thomas Jefferson's statute, in explaining at length the historical context in which the First Amendment was developed. But Jefferson's statute is the primary justification for the Court's opinion. In fact, the vast majority of the other sources cited for context in the decision are not directly related to the First Amendment.

Everson discusses the historic plight of Protestants, for instance, which is interesting but hardly constitutes jurisprudence. Therefore, we ought not concern ourselves with how many pages and footnotes are spent in narrative. We ought to concern ourselves with the bottom line justification offered by the Court, which the narrative culminates towards, which is Jefferson’s statement.

Contrary to the idea that Jefferson's letter is “only” one piece of evidence the Court used, Everson singles out Virginia and speaks of the “dramatic climax” led by Thomas Jefferson and James Madison.

Everson then quotes Jefferson's Virginia Statute for Religious Freedom. Immediately after the Court quotes from Jefferson's Statute (including the part of the Statute that puts explicit governmental acknowledgment of God into law by setting forth the doctrines: that God is Almighty, that God created the mind free, that God has a Holy plan, is Lord both of body and mind, etc.), the decision immediately and authoritatively states that “the provisions of the First Amendment … had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.” It could not be more clear.

Therefore, the only way the First Amendment can be seen to inhibit governmental acknowledgment of God is if Jefferson's statute inhibits itself, a claim which the Court did not made not the slightest indication of when quoting the part of Jefferson's Statute which makes claims about God.

To re-iterate, the Court explicitly said that Jefferson's Statute which declares the existence of God is the authoritative interpretation of the First Amendment clauses.  

Perhaps, in light of the facts I have presented so far, some people might try to minimize Jefferson by arguing that the phrase "separation between church and state" is merely a convenient set of words which the Court chose for reasons having nothing to do with Jefferson's Statute. This however would be a curious argument to make, considering Everson used the phrase more than once and concludes with, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

Given the court's emphatic use of Jefferson's phrase from the letter, we should note that Jefferson ends that letter with “kind prayers for the protection & blessing of the common father and creator of man.” So, if we are to use Jefferson's standard, as the Court did in Everson, government correspondence can include reference to God.

Some may claim that James Madison influenced the Court's view more than Jefferson, however this is simply a speculative claim, considering that the Court quoted Jefferson's work at length and explicitly cited it as providing “the same” protection as the Establishment Clause; in contrast, the Court lightly quoted Madison's work, citing it not as a basis for the First Amendment but as having received “strong support throughout Virginia.”

Regardless of how Madison may or may not have interpreted the amendment, what matters is the intent of Congress as a body. Clearly, the Congressional session which drafted and passed the religion clauses saw no conflict between the clauses and governmental acknowledgment of God via Thanksgiving—just as the Court in Everson saw no conflict between those clauses and official government acknowledgment of God in the Virginia Statute (a Statute which Jefferson remained proud of till his dying day).

Is the Virginia Statute for Religious Freedom is unconstitutional? Is Thanksgiving as enacted by the very session of Congress which wrote the constitution, unconstitutional?

I don't know of anyone who claims the Court relied exclusively on Jefferson's letter to the Danbury Baptists, in its Everson ruling. They did rely on it however, and any speculation on how much they relied on it is just that, speculation. But we are discussing it because the “Separation between Church and State” phrase is constantly repeated by those who want to inhibit government association with things relating to God. They are the ones who propped up the phrase as being an authoritative encapsulation of the religion clauses. For my part, I am simply responding, and I can't very well respond by claiming that the Court didn't really mean it. After all, the Court did in fact cite it.

To this day, the Virginia Statute is still on the books and is valid. Some might propose that its Constitutionality should be challenged. However, the Court quoted the religious doctrines in the Statute, which the Statute specifically says is the basis for the rest of the Statute. By citing those doctrines in that same context, the Court affirms that they are legitimate premises for the rest of the Statute and thus this sets precedent for the validity of basing laws on religious beliefs.

In other words, a court can't say that the preamble has no legal effect—because the Statute makes that legal effect clear by not only mentioning God but also explaining that this belief is the basis for the Statute. The Statute itself tells us it was written because of religious beliefs.

To make this perfectly clear:

1 - Religious doctrines are the basis for Jefferson's Statute. The Statute introduces those doctrines with "Whereas" which means "in view of the fact that." As such, the preamble contains enumerated justifications or reasons for the part of the Statute that follows after. The doctrines listed are: that God is Almighty, that God created the mind free, that God has a plan, that attempts to influence the mind by punishment are a departure from that plan, and that God is Lord both of body and mind.
     2 - Jefferson's Statute is the basis for the Establishment Clause and it also takes sides on the existence of God.
     3 - The Supreme Court said the religion clauses of the Constitution offer the exact same protection as that offered under this Statute which takes sides on the existence of God.
     4 - Therefore, the Establishment Clause cannot possibly prohibit the practice of basing laws on religious beliefs.

Religious Liberty Series Part Four
Can the Government Takes Sides on the Question of God?
Ryan Larsen

Does all this mean the government can take sides on the question of God? Emphatically, yes. The government under the Framers did take sides on the existence of God, and clearly they did not intend the Constitution to ever inhibit the government from doing so.

Some people might try to challenge the word “same,” as used by the Court when it said the religion clauses provide “the same” protection as Jefferson's Statute (i.e. “the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective, and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute”) The only argument that could be used is to say that “the same” does not really mean “the same.” The way these people would probably go about arguing this is to cite the fact that the Court also said:

 The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”

The important three words in the first line are: “means at least.” They would have to argue that this is broader than the provision in Jefferson's Statute, and therefore is not “the same.” The provision in Jefferson's Statute reads:

That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.

The fallacy of this argument is that it misses the fact that the Court could have just as easily said that the Virginia Statute also "means at least" all of those same things. The Statute did not enumerate every conceivable application of its use, nor did the religion clauses. That doesn't make them different. The uses which apply to one also apply to the other.

It is not valid to argue that because the Court's description uses more words and cites more specifics that it is broader than the scope of the Virginia Statute. Using that reasoning, the Court's "description" of the religion clauses would be broader than the scope of the religion clauses, which use very few words and no specifics. In other words, the description does not in any sense contradict the Virginia Statute and is absolutely consistent with the Court's claim that the two things offer the same intended protections.

Religious Liberty Series Part Five
Did the Framers Not Know What They Were Doing?
Ryan Larsen

Another line of attack someone could make is the claim that the official recognition of God by the government headed by the Founders was some sort of oversight and they didn't realize what they were doing.

Not only is this unfounded, but Jurisprudence, as well as common sense, assumes that the actions of the same session of Congress are not contradictory. So certainly we should assume that the Founders did not do something immediately after prohibiting themselves from doing that thing.

Because the meaning of the amendment was exactly identical to what Congress intended it to mean, it's not possible that Congress did not understand its own amendment. So if someone says there was a misstep that can only imply that Congress either forgot the meaning of the amendment or willfully chose to violate it. Both of those are implausible, since Days of Thanksgiving to God continued to be declared in future years. It was not a one time thing that could have slipped everyone's mind.

Moreover, Congress held actual debate over the Day of Thanksgiving. Not everyone agreed to a Day of Thanksgiving. The congressional record states that at least one person objected on the grounds that the government's job was not to tell people to pray. So there was deliberation over the prudence of the action and yet the record makes no indication that anyone thought the Day of Thanksgiving would be contrary to the drafted amendment which they had just recently been discussing at length.

If for some reason someone did want to argue that Congress actually misunderstood its own amendment, despite the inherent logical problems of that assertion, they would have a difficult time. For one thing, they would have to limit their interpretation of the clause to the literal meaning of the few words in it. They could not extrapolate any further meaning from those words, since that extrapolation would rely on the validity of what Congress understood - which is the very thing they are rejecting.

Possibly, one could argue against the facts I've presented by agreeing that the original meaning of the clause did not prohibit governmental recognition of God or "taking sides" on the existence of God, but that the Constitution as a "living document" has changed in that regard and so now it does prohibit those things. However, if someone wants to argue this, then what would they argue as basis for that change? If we were applying the constitution to a situation the Founders could not have foreseen, that would be one thing. But the founders knew what atheism was and knew what theism was, and they took sides.

What people using this argument would be demanding us to do is intentionally conflate core concepts. For instance, a legitimate use of the “living document” concept would be to apply it to the "right to bear arms," since nuclear arms didn't exist when it was written. Clearly we can assume the true meaning does not include a right to bear nuclear arms. But those who demand that we conflate concepts would turn around and say, “it doesn't include bayonets either,” which clearly it does.

One would have to use a truly militant version of the "living document" argument to make the case, and that case would necessarily fall apart when one realizes that the courts derive their power from the original meaning of the Constitution, by presupposing that the original meaning is intact. If the Constitution is constantly shifting in meaning, who is to say the Justices of the Supreme Court are still the arbiters of meaning? Moreover, if the Court's interpretation can contradict the intended meaning of the Congress, why can't We the People turn around and contradict the intended meaning of the Court's interpretation? And, the Court may interpret the Constitution, but who interprets the Court's interpretation? If original intent can be thrown out, then why can't the President, the Executive, throw out the original intent of the Court's ruling, and replace it with one of his own?

The bottom line is that if the Court disregards the original meaning of the Constitution because it's “so old,” that leaves us without anyone in authority.

Thus, sound jurisprudence is to interpret according to the original meaning, to whatever extent that meaning can be attained, and to apply that meaning to unforeseen circumstances as best as possible.

Words can be interpreted different ways. There may be some way to interpret the establishment clause in a manner which makes it look as though it prohibits governmental recognition of God. But even if someone twists the words to that effect, the Congress did not intend the words to convey that and therefore it is not a valid interpretation.

Religious Liberty Series Part Six
The Role of Thomas Jefferson
Ryan Larsen

Others may take the approach of calling Jefferson a deist, and minimizing his reference to God. But Thomas Jefferson never called himself a deist. The title was assigned to him by people who have speculated about his beliefs, with limited evidence. His Statute declares that God chose not to propagate religion by coercion, but that in no way indicates that God abandoned mankind. Indeed, the Statute declares that God authored religion.

Some might argue that the religious doctrines in the preamble part of Jefferson's Statute are not significant because of the very fact that they are in the preamble. But as we have already discussed, the preamble was quoted in Everson, they are listed in the Statute as being the basis for the provisions which follow, and in addition to those two things is the fact that preambles are official government declarations in their own right, independent of other provisions.

No matter how you look at it, by quoting the doctrines declared by Jefferson in the preamble, the Court used those doctrines as relevant information in helping reveal the intent of the Founders who drafted the First Amendment. 

The Court did not quote the entire statute. It left much of it out. Therefore, every part the Court chose to quote has merit on its own and was not included by mere happenstance as a result of being attached to the Statute. Furthermore, the Court quoted the preamble separately from other provisions. Clearly, the Court was validating the preamble as being exactly what it claimed to be, and because of the "whereas," we know that what it claims to be is the authoritative consideration behind the rest of the Statute.

And in quoting the preamble, the Court was not merely recounting history. The Court said it was much more than that, stating, "This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute."

Some may even attack Jefferson's preamble, and say that the Court just didn't realize the implications. However, to argue that Jefferson's official declaration of God constitutes the government aiding religion, would imply that Jefferson's Statute is self-contradictory. The only logical escape from this conundrum is to realize that Jefferson did not see his official declaration of God as “aiding religion,” but separated religious beliefs from religion itself. It is not the same as “giving aid,” because it only indirectly benefits religion. If a religion happens to share those beliefs and benefit, that is a coincidence. Moreover, the government is not forcing anyone to agree with the doctrines.

But, how can the government do anything at all that benefits religion? Surely, Congress makes laws all the time which benefit religion. For instance, national security benefits religion. But it also benefits anyone else who agrees that safety is a good thing. Likewise, when the Statute sets forth religious beliefs, it is for the benefit of The People, not for the benefit of any religion. The fact that the beliefs set forth are of a religious nature does not change that.

God is not an establishment of religion any more than food is an eating establishment or restaurant. To say the government cannot promote restaurants is not to say the government cannot favor eating over starvation. The same is true spiritually as well as temporally.

Religious Liberty Series Part Seven
Intent of the Framers
Ryan Larsen

Others may claim that ascertaining the intent of the First Amendment is impossible, so we should just interpret it however we want. But the amendment itself has no intent. Those who wrote it had intent, and their actions which recognize God prove they did not intend the words in the amendment to prohibit governmental recognition of God.

Yes, we are speaking of the intent of many people who took part in bringing the First Amendment to us. The actions of the legislative body demonstrated the intent of that body, while states who ratified the amendment certainly did not believe that the amendment contradicted the actions of the very session which hammered out the wording—wording which does not prohibit governmental recognition of God. To reiterate: Neither the wording of the amendment nor the actions of the federal government indicated a prohibition on governmental recognition of God, and thus the states who ratified it did so with the intent of something other than prohibiting governmental recognition of God.

Still others will cite quotes out of context from Founders, using those quotes to argue that for practical purposes we should abandon the attempt at discerning the intent of the Fathers as a whole and simply go along with their interpretation of the quotes that were dug up. This is a desperate ploy. As I pointed out previously, Congress deliberated over holding official Thanksgiving to God. Their verdict overwhelmingly favored the legitimacy of governmental recognition of God. This fact is indeed readily accessible to us today, and there is no “practical” need to abandon such plain facts.

Even more desperate is the argument that the Founders intended future generations to discover the actual meaning of the clause. Again, as I pointed out previously, we are not applying the constitution to an unforeseen situation. The founders knew what atheism was and knew what theism was, and they took sides, which means we have a right to take sides today as well. The matter is that simple.

I realize I am being redundant on a number of levels, but the answers to many of these differently nuanced questions with similar implications are often the same. 

All of the attacks on the facts I've presented will inevitably say the intent of the Founders is “too ambiguous.” This is nothing but an attempt to dodge the clear-cut case. By analogy, the concept of different breeds of dog is quite ambiguous, but if the owners of a property have a certain rule stating that wolves are not allowed on their property, while at the same time those owners go out of their way to welcome German Shepherds to the property, it is clear that the owners do not classify German Shepherds as wolves and the rule can never be cited as a ban on German Shepherds. Similarly, it is clear that those who brought us the first amendment did not classify God as Himself being a “religion” and it similarly can never be cited as prohibiting God in government.

To say that Congress acted on the religion issue without realizing the implications of what they were doing is like saying the property owners in my this analogy simply did not realize that the word "wolves" implicated German Shepherds. The point is, if they did not intend it to implicate a thing, then it does not implicate that thing. The only rightful meaning of the clause is what they intended it to mean.

The Congress may have been composed of many individuals with different mental states, but if Congress bans wolves, while at the same time passing a resolution to allow German Shepherds to roam freely through the halls and the streets, we can rest assured that they are not banning German Shepherds. Any attempt to later claim that they banned German Shepherds is simply deceptive.

Some will even try to claim that the Founders didn't really mean it when they issued religious proclamations. For instance, James Madison issued religious proclamations as president, but one person I know of has claimed that what Madison actually believed is that in doing so he was violating the Constitution and that he did so anyway out of a sense of political duty because it's what the people wanted. To support this claim, there are several Madison quotes which can be taken out of context. In reference to the present discussion on the first amendment, the claim is very misleading. Madison did not say Thanksgiving or other governmental recognition of God contradicted the establishment clause. What he said is that the role of the government is not to advise people on their affairs - and this idea was not focused on religious affairs but simply includes religious affairs. Madison was talking about the government, and he stated this without even mentioning the constitution let alone the first amendment, which makes all the more curious that anyone would characterize his statement as a deviation from the establishment clause.

In the context of minimizing governmental advisement of the people on their affairs, Madison worded his Thanksgiving proclamation to "deaden as much as possible any claim of political right to enjoin religious observances by resting these expressly on the voluntary compliance of individuals, and even by limiting the recommendation to such as wished simultaneous as well as voluntary performance of a religious act on the occasion." Nowhere here does Madison mention the first amendment.  Madison worded his proclamation to make clear that the government was not ordering people to participate, which is something we hopefully all agree with.

What Madison did not do is word the proclamation in a fashion which in any way minimizes the official governmental recognition of God, as the argument falsely implies.

Religious Liberty Series Part Eight
Should the Government Recognize God?
Ryan Larsen

Some people will avoid the constitutional issues altogether and simply claim that it is not prudent to allow the government to proclaim the existence of God. But at issue here is not the prudence of taking sides but the implications. For example. In Utah where I live, the state erected crosses as roadside memorials for fallen state troopers (with the approval of their families) and an atheist group sued saying that even if the families wanted the religious displays it violates 'separation between church and state.' This type of encroachment is disgusting to me. The atheists were not asking for the right to opt out in the case of their own fallen loved one, which they already had, or even asking that the reference to God be non-specific. In other words, they were not asking for equal protection. They were asking that God not be recognized at all on government property, and they were claiming that the constitution demands this.

Without the governmental right to acknowledge God – whether it chooses to exercise that right or not - problems can arise like the incident I described. So, yes, it is prudent for the government to proclaim the existence of God.

Others will argue all the points, losing on each point but shifting from point to point without ever conceding any of them, then they will claim that we have come full circle and are at an impasse. This could not be further from the truth. The burden will always be on them to explain how the establishment clause can possibly be interpreted to clearly mean that the government cannot acknowledge God, in light of the various ways in which those whose understanding of the clause dictated its meaning used government to acknowledge God.

Another argument that could be attempted is to say that proclaiming God is synonymous with proclaiming Christianity. This is not the case. James Madison explained that that in the debate over the Virginia Statute some people wanted “to insert the words 'Jesus Christ' after the words 'our lord' in the preamble, the object of which, would have been to imply a restriction of the liberty defined in the Bill to those professing his religion only." Madison further observed:

The opponents of the amendment having turned the feeling, as well as the judgment of the House against it, by successfully contending that the better proof of reverence for that holy name would be not to profane it by making it a topic of legislative discussion, and particularly by making his religion the means of abridging the natural and equal rights of all men, in defiance of his own declaration that his Kingdom was not of this world. This view of the subject was much enforced by the circumstance that it was espoused by some members who were particularly distinguished by their reputed piety and Christian zeal.

 The fact that the legislature deliberated over the religious phraseology of the preamble, doing so in the explicit context of how the preamble affects the rest of the Statute, coupled with the fact that the legislature freely made in the Statute explicit acknowledgment of God, only demonstrates that the Virginia Statute was not intended to prohibit governmental acknowledgment of God, and thus neither does the First Amendment, which holds “the same” meaning as Jefferson's Statute.

Moreover, this only reaffirms that Madison did not believe that governmental recognition of God contradicts the establishment clause, and affirms the arguments I have made to that effect. With respect to Chaplains being appointed to Congress, for instance, Madison did not say that his objection to their appointment was over any concern that Chaplains in the government would constitute recognizing God. Rather, Madison objected on grounds that it would be akin to establishing a national religion. His reasoning makes sense, since Chaplains are ministers of religion.

In his Detached Memoranda, Madison enumerated his specific objections to Thanksgivings – none of which is that they comprise governmental recognition of God. In fact, in that very document he praised the Virginia Statue, which in fact is a governmental recognition of God, saying:

This act is a true standard of Religious liberty: its principle the great barrier agst usurpations on the rights of conscience.

Again, Madison was explicitly saying that a law which proclaims the existence of God is “a true standard of Religious liberty.”

And, again, Madison’s objection is to the idea of an “advisory government.” This is with respect to all advisory matters, which being general includes religion. In the context of his objection to advisory government, Madison states: “The members of a Govt as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities.” Since Madison is speaking in terms of the idea of an advisory role of government, Madison is not speaking in terms of the government’s right to acknowledge God (which, incidentally, is not a form of advisement but simply a right which the founders freely exercised). Madison’s concern then, up to this point, is that Thanksgiving falls under the government advising the people. No reference to the Constitution, let alone the first amendment, only to the idea that “advisory government” is a contradiction in terms.

Indeed, Madison speaks in terms of what the government “ought not” do, rather than what the government has authority to do. Madison goes on to state that members of government cannot, in their governmental capacity, “form an ecclesiastical Assembly, Convocation, Council, or Synod, and as such issue decrees or injunctions addressed to the faith or the Consciences of the people.” Here, Madison does not state that members of government cannot acknowledge God in the official governmental capacity, only that they do not have authority to create, and dictate on behalf of, an ecclesiastical body. This leads into Madison’s third objection: that Thanksgivings “seem to imply and certainly nourish the erroneous idea of a national religion.” Madison’s phraseology that Thanksgivings “seem to” as opposed to “certainly,” and that they “imply” rather than “create” a national religion, is Madison describing his objection in terms of his own level of comfort with the idea. This is a far cry from Madison claiming a constitutional prohibition on the practice of Thanksgivings.

The bottom line is that the concept of God, and ideas concerning God, does/do not rely on organizations of religion, just as food does not rely on restaurants or other organizations. As stated previously, Governmental acknowledgment of "God" only aids those various sects that believe in God in the same sense that the government acknowledging the existence of food aids restaurants. But no one would claim that acknowledging food makes the government part of the food industry.

I will end on an interesting side note. The Virginia legislature was swayed against the use of the name "Jesus Christ" in the statute, but only on the grounds that the use of Jesus’s name in law is too irreverent towards Him. 

As knowledge shines forth in the Last Days, the Lord lights my path of faith with His Spirit.

No comments:

Post a Comment