How can people be allowed to freely practice their beliefs without separation of church and state? It seems paradoxical to say on the one hand that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" while, on the other hand, allowing for any particular religious entity to affect the laws of this country. It would essentially make the first amendment null and void. By allowing for legislation based only in a particular church's doctrine, the US government would be making a law establishing a state religion. Even if it were not explicitly stated that all people must be, for example, Catholic, by allowing legislation to pass as constitutional that essentially forced the doctrine of Catholicism on all, then Catholocism would become the de facto state religion.

What if certain religions were deemed illegal? For example, some religious groups feel strongly that "witchcraft" is a sin and should be banned.

Where does that leave practitioners of Wicca? Wiccans would obstensibly have the same rights to freely practice their religion under the first amendment but could those rights be cancelled out by a group that pushes for a law against witchcraft? If so, how would the first amendment be upheld?

I think this can be a slippery slope towards dismantling the Bill of Rights.

I know your stance and it seems you feel that I somehow wish to censor those whose religious beliefs are intermingled inextricably with their political beliefs. That is not so. I think all people have the right to freely speak their mind and practice what they believe. However, it is not a right to force those beliefs on others. My stance is that any proposed legislation must, first and foremost, be constitutional before it can be passed. Any legislation that pushes a particular religious viewpoint on the entire populace, in my opinion, would not be constitutional because it would establish a state religion and lead to the prohibition of adherents to other faiths to freely practice their own beliefs.

Wouldn't want to live in a society where there was no separation between fundamentalist Islam and the state. Same goes for the Vatican. The lack of separation only works if you're of the "right" religion. If we lived in the Amazon, I don't think we'd want Santeria crammed down our throats by the government, either.
Ironically, we're living in a state founded on the separation of church and state. Roger Williams wasn't an atheist, but he saw the dangers of someone convinced his god was the superior getting to dictate to others.

I don't think we really understand the orignal meaning of "separtion of church and state". Recall that at the time of the Constitution's drafting, we had only recently separated from England and the Church of England. This had led to injustice in England, such as a prohibition on Catholics in Parliment.

This is what the Founders hoped to avoid. They had no difficulty in acknowledging God and assumed the United State was, and would remain, a Christian nation. I believe that it was Jefferson who commented that "we have formed a Constitution suitable for a Christian nation, and no other". I have understood this to be not so much an endorsement of Christianity, as an acknowledgement that the Constitution, and the engines of government, presupposed certain moral values common to Christian faiths. I don't think this debars people of any faith who accept American/Christian values, at least in their actions.

Somehow, "freedom of religion" has been perverted into "freedom from religion".

I agree with your premise that there is really no such ‘absolute’ thing as the separation of Church and State in the context of what you are referring to. I think it is safe to say that the founders meant to avoid the circumstances in England at the time when the Church and State were one and the same.

It is undeniable that many legal restrictions are based on moral codes based on Judeo-Christian principles. The question is … where is the line drawn? I’ll acknowledge that there is a constitutional right to sodomy as there is a constitutional right to use drugs or alcohol. The truth is that the legislature does have the right to define legal vs. illegal behavior – to a degree. And therein lies the gray area. Would laws criminalizing all sexual behaviors outside of marriage cross that line between the freedom, the pursuit of happiness and … immoral behavior?

Or is that too close to the laws of other cultures with who we do not wish to be associated with?
My point is that I agree that the separation of Church and State has been perverted – in a big way. But that the fuzzy line between defining what is accepted (and legal) moral behavior based on religious belief and our concept of individual freedom is not a clear by any means. I don’t happen to believe the separation of Church and State’ is the accurate phrase for this conundrum, but I do feel the conundrum is real.

Justin, I’d be interested in your opinion of this – as in the lines between individual autonomy and faith-based legislating.

"Would laws criminalizing all sexual behaviors outside of marriage cross that line between the freedom, the pursuit of happiness and … immoral behavior? "

You pose this as a hypothetical, but it is part of our American heritage. About a generation ago there were laws against "unnatural acts" (fellatio, cunnilingus (sp?) )and fornication. Fornication presumed the people were not married, the laws against "unnatural acts" did not distinguish by marital status. These laws were pretty much struck down in the 60's, and I don't know if a married couple was ever arrested for "unnatural acts".

We have to acknowledge that morals and religion are sometimes confused. Even those never exposed to a religion might agree that certain acts are wrong, murder, theft, arson, etc. Still these are moral questions. "Civilization" probably has as much effect as religion in thses matters. Lessons are learned about good and bad are learned in the playground as well as the church.

It seems to only be in sexual matters that religion and morals are hopelessly intertwined. Without doubt, many of our moral opinions were shaped by religion, even if you were not directly exposed to that religion. Sociatal norms may have developed from religion, but then became so widespread that their origins were forgotten. It is probably not too far fetched to assume that much Western law developed from the 10 Commandments.

Tabetha,

For the life of me, I don't understand how you find this to be a consistent line of reasoning:

How can people be allowed to freely practice their beliefs without separation of church and state? It seems paradoxical to say on the one hand that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" while, on the other hand, allowing for any particular religious entity to affect the laws of this country.

I'm inclined to ask: How can people be allowed to freely practice their beliefs with separation of church and state? Note the language in the First Amendment: It binds Congress — i.e., the federal government. At the time of its passage, it was understood that states could, if they so chose, establish religions. And yet, upon the passage of the Fourteenth Amendment, which has nothing to say about religion, the federal judiciary declared that "Congress" was merely synonymous with "government bodies." All of a sudden, people who had previously had the right to collect together within a state and, according to their beliefs, align that political entity with a particular creed and religious organization no longer had that right.

That's what I mean when I say that it's impossible to separate church and state. One group's right to ban a form of legislation infringes another group's right to pursue such legislation.

Flash forward to modern times, and we've got reasonable people like you arguing that the very fact that a citizen's political views are founded in their religious beliefs makes those views inapplicable to "self" government. How is that not disenfranchising religious people?

I don't happen to believe that it is healthy for governmental or religious organizations to overlap as a matter of their structures. I do, however, believe that each citizen has a right to vote according to his or her conscience — whether based on theocratic religion or a faith in junk science. I further believe that elected representatives have a right (even the obligation) to take their constituents and their own beliefs and desires into account when creating laws.

I don't mean to be harsh, but there's a degree of incoherence to your position. On the one hand, you accept the notion of de facto establishment:

... by allowing legislation to pass as constitutional that essentially forced the doctrine of Catholicism on all, then Catholocism would become the de facto state religion.

On the other, you take as an example the literal banning of a particular religion:

What if certain religions were deemed illegal? For example, some religious groups feel strongly that "witchcraft" is a sin and should be banned.

You're taking the fuzziest outlier of establishment and saying that it would be precisely the same as the most direct form of establishment. It's a difficult point to convey to somebody who disagrees. On the one hand, you're suggesting that Catholics (for example) cannot practice their faith — as we believe we must — in their civic responsibility. On the other hand, you're saying it would be wrong to ban Wiccanism, per se. Do you see the distinction I'm driving at, here? It would be unconstitutional to ban Wiccanism qua Wiccanism because that targets a specific religious group. By contrast, it is impossible to call our society democratic self-rule and at the same time pick and choose whose understanding of reality may be considered applicable to the law.

In essence, you're establishing radical individualism as the state religion. Say a religious group really truly believes that a people is damned to Hell whose government doesn't support a particular church. (That's not my view, by the way.) You are insisting that, as a matter of the highest law of the land — the federal government — the citizens cannot behave as if that belief is actually true.

In a more mild version: you're saying that every individual must be free to do as he or she pleases, but you're denying individuals the right to behave as if the behavior of the community is significant. If a person believes it does material and spiritual harm to her community to allow open and promoted sale of sex and drugs, you're insisting that she cannot seek to form her own government in such a way as her beliefs require. You're saying that, as a matter of the highest law of the land, such a reality cannot be considered feasible.

I think the states ought to be able to establish religions, if they want. I think they ought to have wide latitude to criminalize certain behaviors. I think the federal government ought to limit its proscriptions to a handful of rights designed to ensure that its citizens are (1) free to work to change their local and state governments, and (2) free to escape a system with which they do not agree.

Libertarians, in this regard, join progressive liberals in wishing to leverage the federal government to impose their worldview on the entire country. I believe that lower-level governments ought to be able to restrict behavior. You believe that our top level of government should be able to make illegal my ability to affect the policies of my government in accord with my beliefs. For democracy to be real, that has to be the fundamental right from which all of the others flow.

msteven,

My argument, in summary, is that the act of drawing the line is, itself, an act of religious establishment. As such, in most of its particulars, it should be left to the states, which ought to be able go all the way to establishing a religion or limiting the motivations that are admissible for proposing legislation. That is, from the theocratic to the libertarian extremes.

The federal government should draw the line to further the limited objectives that I described in my previous comment: Protecting activities that foster political change and that enable escape. That itself is line to draw, with respect to what activities further those aims, and I'd draw it so as to guarantee a right to free intellectual speech (pushing pornography and such to the states), to practice religion in the narrow sense of performing rites, and so on.

I just thought I would add this note for those concerned with religion, sex, morality and the law. I think many social historians would agree that a landslide of change in these laws was brought about in the 1960's by Playboy Magazine in the publication of the "Playboy Philosophy". It was the first to offer phraseology to help bring about that change, such as "consenting adults". "privacy of the bedroom" and several other terms that are now commonplace.

I offer this only because many here seize on sexual, or moral, legislation to combat church and state alignment. As I recall, it offers many examples of police actually invading people's homes for enforcement of "morality laws". It is fairly lengthy and not of interest to everyone. I just Googled it and found that it is avaiable on-line in its entirety. Since most of what it argues for has come to pass, it is largely of historical interest.

It is easy to dismiss Playboy as a "girlie magazine", but in its time it was a social arbiter. Every major city had a Playboy Club, which were places to see and be seen. Many believed that flashing the "Playboy Key", which gave you admission to a Playboy Club, was s sign of social liberation. It also published articles by such unlikely contributors as William F. Buckley.

Justin,

First, I appreciate the historical perspective on the decision that occurred at the time of the passage of the 14th amendment. I was admittedly unaware of this history.

That said, I personally would not like to see states setting up official religions. I think it would undermine practitioners of other faiths in that state. There are certain states such as Utah where the majority of the population adheres to a particular faith (in that particular case, Mormonism). However, if Mormonism were established as the official religion of Utah, how would that affect non-Mormons? Congress would not be prohibiting the free practice of religion but the state would.

So the real question is:
Can it ever be possible for all people to freely practice?

Believers of certain faiths may feel that it is their duty to convert others. But should this be done through law? Would you ever have real converts or just people who are forced to go through the motions of a doctrine they do not believe in and by which they feel marginalized?

With various states setting up different religions, we'd have a mish-mash of inconsistent laws that would just set people up to get into trouble. Would a common law couple from a state that does not have a law against fornication suddenly find themselves open to arrest when visiting a state that does? What if a gay couple adopts a child in a state that allows gay couples to adopt? Could that child then be taken away from them and could the couple be charged if they relocated to a state that declares homosexuality illegal?

I think this is a case where the federal government does need to intervene and set some limits for the states. Otherwise it would be more like traveling amongst small separate countries instead of one united country.

My stance is that I support the rights of all people to freely practice their religion up until the point that it infriges upon others' rights to free practice - i.e., your rights should end where mine begin.

This is why laws against crimes such as murder, theft, and rape are necessary. I do not believe one person should be allowed to infringe upon another's rights. I think this goes for religion, too. If you want to evangelize by handing out tracts and offering to talk to people on street corners, that is your right. Other people are free to either listen or say, "No thanks", and move on. It is when "No thanks" is no longer an acceptable option that I find the evangelism imperative to be problematic.

Tabetha,

I personally would not like to see states setting up official religions. I think it would undermine practitioners of other faiths in that state.

By what standard do you claim authority to prevent your fellow Americans from setting up a community far removed from your own in which they can draw the civic-religious line differently than you "personally" would? It's as if Americans now imbibe a baseline totalitarianism growing up.

In order to protect against a series of pure hypotheticals you are insisting that we forbid the federalist system from allowing any real differences between states. This mentality is facilitating two destructive trends that are putting our nation on a track to dissolution:

1. Increasing the size and influence of the federal government (from which every problem of special interests and campaign finance corruption ensues)
2. Ensuring perpetual civic discord, because groups that disagree with each other on fundamental issues cannot find a space, within the country, in which to live and let live.

Sure, there are difficulties to having a truly diverse society, but your solution is to join with the central planners who believe that we can concoct an ideal society in which everybody can get along, provided they adhere to rules that we "personally" prefer.

P.S. --- I'm curious about your adoption example. Do you suppose that a state could institute a policy of abducting visitors' children without facing extremely heavy (probably unbearable) economic and political negative pressure? Do you suppose that gay couples with adopted children would not be aware of, and inclined to avoid, states that might take their children away?

Pause for a moment to consider what your examples require you to believe about your fellow man and woman. You might find it disturbing.

Justin,

Your view that the states should be able to make laws that establish a state religion or even limit the motivations towards proposing legislation is an interesting idea. I’m not sure how you would affect the latter. Isn’t that sort of like hate crime laws? I can see where a community of people should be able to create a ‘community’ and the rules that are required to live in that community – as you said from the two extremes say for example from theocracies to Berkeley, CA.

I do have a question:
- You said that states should be able to limit the motivations that are admissible for proposing legislation and then that federal government protects activities that foster political change. Don’t those two conflict? Or maybe I am misunderstanding what you mean by limiting motivations. Can you explain?

I agree with you that it is not against the constitution to make laws telling other what to do/not so based on religious beliefs. But the same can be said regardless of the basis of the idea – be it religious, libertarian or even prejudice. If a community or state wanted to outlaw say, interracial marriage. I’m sure you wouldn’t support it, but the point is – it follows the same logic. People should be allowed to legislate based on their own view of what is moral, right? Certainly some lines cannot be crossed such as theft or murder. But freedom of association WITHIN a community (or state or locale) is not an absolute right. If one state wants to ban homosexual behavior, they should be allowed to do so. If one state wants ban religious behavior, they should be allowed to do so. As long as the people are allowed to escape.

In essence, your viewpoint does represent true democracy and freedom. The caveat is in the acknowledgment that democracy and freedom can sometimes result in negative consequences. And those consequences need to be balanced with the freedom to accept the responsibility of those consequences. To me, that is the significant yet unacknowledged (at least publicly) difference between liberalism and conservatism – the acceptance of responsibility for negative consequences.

Finally, your point to Tabetha is well take. But again that can cut both ways. Just to clarify, you seem to be saying that the consequences for a state which abducted children from gay homes would be the negative economic and political pressure. How about if a community abducted children from evangelical couples (like Berkeley, CA)?

I do agree in theory with your free-market federalist approach to this. But I am curious of your reaction when the consequences of your viewpoint would not be to your liking.

You said that states should be able to limit the motivations that are admissible for proposing legislation and then that federal government protects activities that foster political change. Don’t those two conflict?

Not at all. The federal protections carve out safe zones that the motivational limits cannot touch. For example, a state could use its constitution to embellish the Establishment Clause (as a wide variety of folks, including, apparently, Tabetha, would like to do for the entire country) such that "religious views may not be considered sufficient justification for legislation," but federal law would bar them from disallowing citizen activities toward repeal of that amendment. Federal law would also ensure that the state can't simply say that "religious people can't vote."

If a community or state wanted to outlaw say, interracial marriage. I’m sure you wouldn’t support it, but the point is – it follows the same logic.

Yes, the logic is the same, but racial divisions hold a unique place in the history of the nation — a fact for which the law can certainly make room as a special case. Without expanding the topic into an extended thesis (just now), I'd note that there is also a line between disallowing marriage, as a licensed relationship, and disallowing the behavior of marriage. And it should also come into play that a right to procreate and form families is "prior to" government in such a way as to be intrinsic to the right to change one's society.

It would be messy, to be sure, but democracy is messy by necessity... if it is real.

Lastly, what I intended specifically to imply, to Tabetha, was that a state would be crazy to institute such a policy and, therefore, would not. And if it did it would be so controversial that the people from other states who would be affected would be well aware and quite inclined to avoid the state.

In short, I would find the abduction of anybody's children to be a grave moral evil, and I'm confident that social, economic, and legal means would be effective in preventing such policies. What I'm challenging is the notion that the purely hypothetical possibility that some rogue U.S. state might seek such a policy requires us to disenfranchise religious voters and neuter their representatives.

Justin: For example, a state could use its constitution to embellish the Establishment Clause (as a wide variety of folks, including, apparently, Tabetha, would like to do for the entire country) such that "religious views may not be considered sufficient justification for legislation," but federal law would bar them from disallowing citizen activities toward repeal of that amendment. Federal law would also ensure that the state can't simply say that "religious people can't vote."

I understand what you mean. Although I still cannot understand how any law could limit the ‘motivations’ for legislation. How would that work and /or is there a current example of such a law? In any case, I don’t think Tabetha is advocating for a law separating religious views from legislation, but arguing against the merit of religious views being the sole justification for legislation. There is a distinction. Sort of like there is a distinction between immoral and unconstitutional.

Justin: Yes, the logic is the same, but racial divisions hold a unique place in the history of the nation — a fact for which the law can certainly make room as a special case.

I don’t agree with this. It’s the same sort of logic that supports affirmative action.

Justin: And it should also come into play that a right to procreate and form families is "prior to" government in such a way as to be intrinsic to the right to change one's society.

I don’t understand what you mean here. Yes, procreation and forming families were prior to legal rights but I’m not sure I understand how that relates.

Justin: In short, I would find the abduction of anybody's children to be a grave moral evil, and I'm confident that social, economic, and legal means would be effective in preventing such policies. What I'm challenging is the notion that the purely hypothetical possibility that some rogue U.S. state might seek such a policy requires us to disenfranchise religious voters and neuter their representatives.

Assuming I understand you correctly (big assumption) I actually agree with you here. I think there are enough political checks and balances in addition to the social, economic and legal consequences of such an extreme law that it is not necessary to disenfranchise any voters – be it religious or any advocacy group in pursuit of legal change. That is the essence of democracy – with its messy benefits and costs.

msteven said:
In any case, I don’t think Tabetha is advocating for a law separating religious views from legislation, but arguing against the merit of religious views being the sole justification for legislation

Exactly my point. I do not wish to disenfranchise any voter due to religious beliefs. I think that would be wrong. However, the Supreme Court has decided on numerous occasions that there are certain limits to states' rights - laws cannot be passed simply because most people think a certain way without regard for how others' liberties might be curtailed.

I do believe the Civil Rights Act of 1964, which covers race, color, religion, sex, and national origin, would prohibit legislation that allows one religious group to impose its views on other groups to the extent that followers of other faiths cannot freely practice. Would this not be religious discrimination?

Justin, it seems your view is that religous discrimination is the curtailment of one group's efforts to impose its views on everyone else, up to and including to the extent that other groups can no longer freely practice their beliefs. This would likely happen if a state were to institute an official religion. You say this would not be banning any religion, but it would make it difficult if not impossible to practice any other faith besides the "official" one.

I have no authority myself to prevent any state from trying to establish a religion. I was merely stating my personal opinion - I would hate to see states setting up official religions.

That said, I do think any attempt by a state to do so would be challenged by the Supreme Court as unconstitutional.
I don't think any state would actually get a majority of voters to support such legislation, but in theory if this were to happen, I do believe it would be challenged.

Yes, I guess one can propose any piece of legislation they wish to propose, but if it seems to be unconstitutional it can certainly be challenged in the highest court of the land where the justices would be left to make the ultimate decision on the matter.

The landmark 2003 Supreme Court decision of Lawrence v. Texas demonstrates that state laws can be determined to be unconstitutional by the Supreme Court. According to this decision private sexual matters between consenting adults were considered protected under the due process clause of the Constitution and sodomy laws across the country were subsequently invalidated.

Tabetha,

I do agree with much of what you wrote. I agree with Justin to the extent that religious voters are disproportionally disenfranchised or their views disrespected. We have cases going to the Supreme Court where the issue is whether a cross can be shown on public grounds or a prayer can be said at a public school – on the grounds of separation of church and state. But I have yet to see a case about whether the destruction or vandalism of a religious symbol is unconstitutional – because that is free speech. So the existence of a religious symbol or mention of a deity name may be unconstitutional unless … that symbol or speech is portrayed negatively. Seems a little one-sided to me.

Also, while I believe that the sodomy law was prejudiced and don’t agree with it, I don’t understand the unconstitutionality of it. How does that go against due process based on private sexual matters between consenting adults but say, laws against doing drugs in the privacy of your own home not? Both are purely private matters. For that matter, wouldn’t it also follow that adultery laws are unconstitutional? (knowing they are never or rarely enforced) My point is that legislatures should be drawing the legal lines between behavior. Whether those are constitutional or not should be pretty clear-cut.