John list ten "rules" concerning the separation of church and state. I thought I might respond to those rules in the context of a non-American. It will be interesting to see if there's a difference in how Americans perceive "separation of church and state" and how it's perceived in other countries.
John's rules are in boldface and my response are in italics.
10 Commandments of the Separation of Church and State:
1. Neither a state nor the Federal Government can set up a church.I disagree in the sense that many countries with a state church don't seem to have as the same problems as the USA. So, I would not advocate a hard and fast rule that forbids state religions. I don't think a modern country should set up a new state religion but neither do I think that existing ones need to be abolished. I would definitely support disestablishment, myself, but antidisestabishmentarianism shouldn't be illegal.2. Neither a state nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another.I disagree with this as well. There's nothing seriously wrong with tax breaks for religious charities, for example and there's nothing wrong with laws that proclaim national holidays on days with special religious significance for one group. (e.g., Good Friday) I prefer to live in a society that chooses not to favor religions but it shouldn't be illegal.3. Neither a state nor the Federal Government can force nor influence a person to go to or to remain away from church against his will.Nobody disagrees with the "force" part but the "influence" part is a different story. I favor a government that influences people to stay away from churches that preach hatred and bigotry.4. Neither a state nor the Federal Government can force a person to profess a belief or disbelief in any religion.Everyone agrees with this one.5. No person can be punished for entertaining or professing religious beliefs.I agree in principle. There might be some extreme cases of religions that merit banning but these are exceptions. In a case where one's religious beliefs might case harm (e.g., refusing blood transfusions for children) the state is justified in stepping in even though this can easily be seen as punishment.6. No person can be punished for entertaining or professing religious disbeliefs.This one seems pretty straightforward. It's the one that's most difficult to enforce, however. Right now atheists would have a very hard time getting elected in many parts of the USA.7. No person can be punished for church attendance or non-attendance.Same as #5.8. 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.I disagree. Tax money is used to support religious schools in Canada and many European countries. While I would argue strongly against such a practice, I see no reason to make it against the law. It's a matter for society to decide, not the courts.9. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups.Lots of countries have state religions. In modern civilized countries, they're pretty harmless for the most part. I don't see any reason to have a constitutional amendment in Great Britain.10. No religious organizations or groups can, openly or secretly, participate in the affairs of a state or the Federal Government.Same response as #9.
Regarding point #2, I'd say there's nothing wrong with tax breaks for charities, full stop. Whether or not they're religious shouldn't matter if charity is their main purpose. If they engage in proselytising, they shouldn't get tax breaks for that. Along the same lines, churches shouldn't be exempt from taxes, as they are in many countries right now.
ReplyDeleteThere's nothing wrong with national holidays, and if they happen to coincide with religious holidays I don't think anyone's going to complain, but since everyone gets the holiday, it's only debatably aiding one religion. What shouldn't happen is that adherents of a certain religion get certain days off while other people don't, though.
On point #8, I just want to say (without getting into the religious school debate) that ideally the courts are an extension of the will of society anyway.
As far as state religions go, they're mostly harmless in the few Western countries that still have them only because they're state religions in name only. They don't, on the whole, exert much in the way of influence on the government, and they don't particularly get special benefits other religions wouldn't get.
If they actually still had the power they historically did, and still do in most Muslim countries, they'd be devastating to religious freedom and freedom of expression in general. They work precisely because they are in effect subject to separation of church and state, even if they aren't necessarily in name.
I think there's a general cultural difference in that, because of the way their constitution is written, the Americans have a political rhetoric of absolute rights. So people on both sides of these arguments tend to have an all-or-nothing approach that doesn't allow for the kind of pragmatic fudging that most other countries tend to settle on. Not just the separation of church and state, but freedom of expression, the right to bear arms, and abortion - in all cases the arguments become very polarised.
ReplyDeleteI'm not sure the law is a very good tool for trying to win an argument of ideas anyway.
'Lots of countries have state religions. In modern civilized countries, they're pretty harmless for the most part. I don't see any reason to have a constitutional amendment in Great Britain.'
ReplyDeleteI disagree with this. The Anglican church does have more influence than e.g. Muslim groups in the UK. Can't really think of a concrete example off the top of my head, but they are consulted and have more media influence than is merited by the fact that only a few percent of the population (single figures I think) are church-goers. There is an assumption that the Archbishop of Canterbury is the moral voice of the country, which he most certainly is not.
You must also consider the damaging effect it has in that it endorses the "this is a christian country" mentality. This doesn't help when it comes to addressing tensions between different cultures and religious groups.
John missed a rule, a counterpart to his rule #2: Neither the federal government nor any state government may do anything that specifically harms a church or a religion. In particular, the government can't tax any church or religious institution.
ReplyDeleteThe reason for this is found in the case Marbury v. Madison, an epochal case in US constitutional law. Chief Justice John Marshall's Marbury decision points out that "the power to tax involves the power to destroy" -- ie, if a government can tax an entity, then it can destroy that entity simply by making the tax higher than the entity can pay. He was writing on a different specific case, but the reasoning carries over 100% to church-and-state: the state can't tax churches because if the state is allowed to tax churches, the danger exists that that power will be used to destroy churches, which would be a violation of the First Amendment.
Being an American, and generally familiar with the legal history behind each of John's rules, I tend to agree with all of them. There's only one way in which I'd allow any government to wield power over religious beliefs or institutions: a rule along the lines of "religions that openly advocate violence toward others are forbidden." This to include religions that advocate terrorism; religions that advocate armed revolt and/or conquest by the sword; religions that advocate open physical or legal attacks on their critics; et cetera. The same rule that applies to freedom of speech should apply to freedom of religion: your freedom to speak does not allow you to endanger others. "Inciting to riot" is not covered by "freedom of speech." It shouldn't be covered by "freedom of religion" either.
Much of the confusion over secularism lies in the misunderstanding that this idea is non-religious.
ReplyDeleteShiva says,
ReplyDeleteMuch of the confusion over secularism lies in the misunderstanding that this idea is non-religious.
I agree. There are an incredible number of people out there who just don't get it. Secularism is the absence of religion. A secular society is one where religion plays no significant role.
As incredible as it seems, there are some people who believe that secularism and atheism are "religious" beliefs.
Lots of countries have state religions. In modern civilized countries, they're pretty harmless for the most part. I don't see any reason to have a constitutional amendment in Great Britain
ReplyDeleteSpeaking as a subject of Her Majesty, albeit one now resident in these here Yoonited States, I believe that, in these days of a multi-cultural society, the time is long since past when there was any justification for an established religion.
If groups of like-minded people wish to congregate as adherents of a particular faith, they should be free to do so, provided their activities do not infringe on the rights of others. If they wish to perform charitable works then they should be free to apply for government financial support like any secular charity.
What they should not have is any automatic entitlement to preferential treatment or financial support from the state simply by virtue of being a religion. And as long as the state provides an adequate education system there is no reason for it to fund religious schools. If particular faiths wish to provide additional schooling then they should be free to do so but they should expect to organize and pay for it themselves.
As an agnostic, if I were still a taxpayer in the United Kingdom, I would not be happy to see my money being used to fund Catholic, Protestant, Muslim, Sikh, Hindu or any other religious school.
Larry,
ReplyDeleteClassical secularism is a church influenced idea that brings with it the whole caboodle" soul, consciousness, free-will, salvation etc. As long as the claim of religions to be about the 'truth' goes uncontested even seemingly 'secular' societies can't but give in to pulls of religion. I am pleasantly surprised by your views on separation. If religious claims are treated like any other belief strictly subject to man made law and the interests of public order, the obsesive separation becomes a non-issue. So that way an "atheist" (again a religious idea) or a theist could believe in whatever they wanted as long as they do not mess-up civil society. The French idea of separation is much more of this nature.
Whew, I somehow missed this but better late ...
ReplyDeleteI should say that this was taken almost verbatim from Justice Black and, of course, it was only intended for Americans under our particular ... some would say peculiar ... Constitution. I didn't intend it (and neither did Black) to be a universal set of rules. Any implication to the contrary is nothing more than my parochial failure to make it explicit that these are America's solutions to the problem of how church and state should interact.
There are some nuances that are not obvious from Black's formulation. Religious charities are tax exempt, on the same basis as non-religious ones. Indeed, church organizations are generally tax exempt (but where they are, organizations such as Ethical Humanists societies must be also).
The state can step in to protect children in cases involving religious practices that endanger the health of children.
As to the electability of atheists, these rules apply only to governments. People remain free to vote their prejudices.
In the case of tax money being used to support religious schools, we arguably made that decision back when the Bill of Rights was adopted. If that is to change, either the Constitution or its interpretation should change and there are legal ways to bring those results about. Thus, it is both a matter for society to decide, and one it has done so.
There may also be a misunderstanding here. While these are rules to keep a secular society, they are truly intended to protect religion. As I've said elsewhere, I think the U.S. is the most religious country in the developed world because of the Establishment Clause guarantee that the government will remain secular.