Monday, April 24, 2006

First Amendment Blues

I got two emails yesterday that were urging me to sign some of these ubquitous internet petitions that are out there. The first was against John Kerry being the democratic nominee in 2008, which was nice enough (I didn't want him to be the nominee in 2004, so I certainly don't want him in '08), except the grounds were that because he was Roman Catholic, electing him would be tantamount to setting up a theocracy, which is unconstitutional. (A student of history would know something about the discussions that happened around JFK's election .... or maybe even someone who saw the first season of The West Wing ... but that probably expects too much).

The other was about a House bill (235) that would change the IRS guidelines to allow for endorsements of candidates for electoral offices from the pulpit. There's reasonable arguments on both sides for this -- only he framed it by saying that church's should lose their tax-exempt status if they engage in any political activity.

One of the things I am just sick of is the complete misunderstanding of the separation of Church and State as put forth in the First Amendment. So here's what I wrote back to this person. Lawyers (Ian O., Rand, others) who read this -- and everyone else (I know Ian K. and Wells will have opinions), let me know if my argument would be thrown out of court.

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I imagine that what sparks this in you is not wanting the "religious right" or the Roman Catholic Church to impose their views on the country. That's great ... neither do I. But the answer to that has nothing to do with religion.

The First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." It also says after that, "or abridging the freedom of speech, or of the press."

The First Amendment prevents an OFFICIAL establishment of a state religion. Religion can exist (and, in fact, atheism being a fairly foreign concept in the 18th century, it was assumed by the founders that it would exist and that people and governments would be shaped by it), but the government cannot tell an individual WHICH religion they have to practice or, in fact,
if they have to practice any religion at all.

That's why if some state representative here in Missouri wants to put forward an amendment declaring Christianity the "state religion" of Missouri, that should be and would be unconstitutional. You cannot have a state religion.

The first part of the first amendment is there to prevent the government from mandating what someone can and cannot believe. All belief systems should enjoy equal protection and access under the law -- so far as the practice of those belief systems doesn't infringe on the constitutional rights of others (in which case the problem would be the infringement of the
practice, not the belief system itself).

It really is about "preventing theocracy" -- having a religion that is one with the state that the people are mandated to believe and follow as such.

That is the LIMIT of the first part of the first amendment.

The problem with the two emails you sent out is that they have nothing to do with the first amendment. Neither one of them is trying to establish a state religion. Both are trying to restrict speech on the grounds that it is based on religious thought -- which I would argue is actually a violation of the first amendment.

Ideas are ideas. Some ideas find their foundation in religious beliefs. Others find their foundation in other systems or are just plucked out of the air. The free expression of ALL ideas (again, assuming they do not cause a "clear and present danger" -- like shouting "fire" in a crowded theatre) is guaranteed by the First Amendment.

The problem is, what you are saying is that ideas that are based on religious principles are not OK and ideas that are not based on religious principles are OK. That's unconstitutional -- and should be. Religious ideas should get no advantage in the marketplace of ideas over non-religious
ideas, but they should get as much power as all others. You cannot discriminate against an idea just because its foundation is religious.

As far as churches losing their tax-exempt status if they "get directly involved in politics" you run into a whole bunch of problems.

First of all, how do you define "getting directly involved in politics" -- strictly speaking, any activity that involves more than one person is political. Churches have been the driving force behind some wonderful social change in our country. Your description of this bill would have stripped all the churches of the Southern Christian Leadership Conference of their
tax-exempt status for participating in the civil rights movement. It would strip all the churches that I work with that lobby for increased government attention to eradicating global poverty and acheiving the Millennium Development Goals of that status as well. Both of those are intensely political acts.

Churches enjoy a tax-exempt status because the people have decided that they -- like other nonprofit entities that enjoy the same status -- provide a valuable public service and do not exist for their own profit. If you want to argue that no churches should have tax-exempt status, go ahead ... and you actually might be able to make a decent argument there. But you can't
have participating in political activity be the yardstick.

I sense the problem is that you don't like two things.

1) You don't like the ideas that some religiously-motivated people are putting forward.

2) You don't like the idea that a religious group is making laws.

Well, on No. 1 ... do what you do whenever you don't like ideas that are being put forward. Refute them. Present better ideas. Campaign and argue about why your ideas are superior. Persuade and lead. That's what democracy in this republic is supposed to be about. But don't attack them on the grounds that they are religious -- because that makes as much sense constitutionally as attacking yours on the grounds that they are not.

On 2) -- power is held by groups and always has been. Unless you have a dictatorship, the majority will rule, and that means groups and coalitions will make and interpret the laws. Now you can call the "organization behind the powerbrokers" the Democratic Party, the Republican Party, The Roman Catholic Church or the Flat Earth Society. It doesn't matter. If they campaign effectively enough and get enough seats in Congress and put someone in the White House who puts people on the federal bench -- they get to make and interpret the laws (assuming those laws fall within the Constitution).

Do you think the Democratic Party or the Republican Party doesn't tell its membership how to vote? What do you think Whips do in the House and the Senate? There is no difference between someone being persuaded by their Party how to vote and someone being persuaded by their church how to vote except -- here it comes -- that one has a religious foundation and one does
not. And you cannot discriminate against a person or organization on the basis of religion because of ... The First Amendment!

I know I've gone on about this for awhile, but I think the emails you're sending out are dangerous (not that you don't have a right to send them -- the First Amendment cuts all sorts of ways!) because they are rooted in a widespread misunderstanding of the First Amendment and the separation of Church and State in particular. |
Mike at 4/24/2006 02:06:00 PM