The Importance of Separation of Church and State

The founders of the United States were deeply religious.   But they were not narrow-minded or bigoted in their religious thought.  They were students of the Enlightenment.  And so in writing the 1st Amendment they saw to it that the government would neither pass any law respecting the establishment of religion, thus forcing it on people, nor one prohibiting the free exercise of religion.

As worded, the amendment is all about prohibiting what the government can do.  In interpreting the amendment, the courts early on looked to a January 1802 letter written by Thomas Jefferson which stated that the language in the amendment “built a wall of separation between Church and State.”  This phrase echoed a statement made by Roger Williams, the founder of the first Baptist church in America who spoke of “a wall of separation between the garden of the church and the wilderness of the world.”

President Trump is correct that the prohibition on election activity by churches is a result of a law pushed by Lyndon Johnson.  It impacts all non-profit, 501(c) 3 organizations, not just churches.  There is no existing constitutional law/case mandating this prohibition.

However, that is not to say that there exists no basis in the constitution for such prohibition at least as it pertains to churches.  Certainly not if we look at the intent of the founders, which is the standard in vogue with conservative jurists, including the current Supreme Court nominee Judge Gorsuch.

A wall is only a solid wall if it is two-sided.  The government is restricted regarding what it can do that affects religion and people’s free choice.  And churches, which is to say religion, should be restricted from engaging directly in political matters such as campaigns.  

Why?  Churches should not be sullied by engaging in politics.  As Roger Williams eloquently said, the garden of the church needs to be separated from the wilderness of the world.  Encroachment of the “wilderness” comes not just through laws that might restrict or command religious practice, which is the literal meaning of the 1st Amendment, but through the church becoming entangled in the wilderness.

I see this reading of the 1st Amendment as being an important part of protecting religious freedom.  Churches do have free speech and can speak out on any issue concerning the public or the state.  And indeed they use this right very effectively and appropriately.  Churches should be a moral authority.  But to take that one step further and allow churches to actively support specific candidates or parties, which is what President Trump wants to allow, would lead churches and religious organizations down the proverbial slippery slope and create a problem.

For centuries, churches were not involved in politics both because they thought that the world of politics was sordid and because there was no need to.   Freedom of religion was set in the Constitution.  

But at some point in the 1980s, Evangelical leaders started getting concerned that their values, what they felt were American values, were being undermined either by liberals or by less religious people.  And with the encouragement of Republican operatives, they got involved in politics.  To protect the America that they felt was the true America.

And here one sees clearly the problem.  This is not about freedom of religion.  No one was telling Evangelicals that they couldn’t do or practice what they felt were the standards, the commandments of their religion.  This is about one religion wanting to impose its view of morality upon the entire society, not by forcing everyone to join the same religion but through the law.   Which is in effect against the establishment clause of the 1st Amendment.

As generally recognized, the establishment clause "not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion." 

Or more recently, when they offer services to the public through their businesses, they want to be able to discriminate regarding who they serve.  But we have a law in this country.  It is part of the civil rights laws that if you serve the public you cannot discriminate in who your serve.  Period.  That doesn’t keep you from practicing your religion and remaining true to your beliefs.  That is something private.  It just stops you from forcing your morality on others when you put yourself out as a purveyor to the public.  Because then it impacts other people. 

If churches start campaigning for candidates, which has already happened despite the Johnson Amendment, then when a candidate is elected and recognizes his debt to these churches, the person is likely to propose actions, as has President Trump, which please that group even as it tramples on the rights of others.  

His vow to find a conservative jurist committed to overturning Roe v Wade was an effort to win the evangelical vote by getting the organized evangelical church and other organizations to support him and campaign for him.  And now he has carried through on that promise, despite the fact that as recently as 1999 he said that he was “very” pro-choice.  

Likewise there have been articles written about memos circulating in the White House that would turn back the rights that have been recognized for LGBT people, again despite the fact that as recently as November 13, 2016 he said that he was “fine” with gay marriage and that the matter was “settled.”

The influence of churches in campaigns is bad for our freedoms and ultimately religion.  Our system of rights maintains that we all, not just a few, have rights.  And the rights guaranteed by the 1st Amendment are indeed the strongest.  

But even they are not absolute.  No one can exercise a right if in so doing they infringe on the rights of another person.  That is the basis of all laws and regulations that impact people’s rights.  There is a greater good that is always considered.  That is as true for the freedom of religion and for the other rights guaranteed in the Bill of Rights.  If one religion does not respect the rights of others of another religion or no religion, that is a sad day for religion in our democracy.

There is one more reason why Trump’s idea is a bad one.  America has been blessedly free for most of its history of the open religious antagonism and warfare that plagued Europe for centuries.  Yes, there has been anti-semitism in various forms, as well as anti-catholicism.   But there has not been open hostility between the various religious establishments.

If churches start being involved in campaigns with those supporting the winner benefiting in some way and having their view be ascendant, there is much more likely to develop the kind of deep-seated animosity that was a feature of European history for so long.   These feelings may be below the surface in America, but they are there and it wouldn’t take much to raise them to a different, vocal level. 

The Johnson Amendment should not be repealed and churches/religious organizations should voluntarily refrain from campaigning for individual candidates or parties for the reason that it is just not seemly.   To quote Roger Williams again, “There should be a wall of separation between the garden of the church and the wilderness of the world.

I urge the President to reconsider his support of churches’ campaigning in support of specific candidates or parties.  And I urge Congress to maintain the Johnson Amendment in force.

Hate Speech - The TIme Has Come to Regulate It

Hate speech is defined as “speech that attacks and is an incitement to hatred of a person or group on the basis of race, religion, gender, or sexual orientation.”  Hate speech is not a rational discussion of the pros and cons of a group’s values or actions.  It is targeted solely at the listener’s emotions.

There has always been a lot of hate speech in this country, but over the past few decades, it seems to be getting worse.  As in the past, hate speech is directed against various groups ... gays and lesbians, people of color, immigrants, pro-choice women and their doctors, Muslims ... with the object of either inciting the public to act against these groups, often through legislative action but also often through violence, or just denigrating their value as human beings.

Such speech has been deemed protected by the 1st Amendment’s right of free speech.  While that right is not absolute, the only limitations on speech approved by the U.S. Supreme Court have been incitement that created a clear and present danger of violence or illegal action, libel and slander, obscenity, “gag” orders to insure justice, or protecting consumers from false advertising, for example.

In each of these cases, someone was being harmed in a way that could not be practically countered in the “marketplace of ideas,” which is the function of free speech in a democracy.  While most European countries, and some others, banned hate speech after WWII because of the Nazi experience, the United States has not seen fit to do that.  The reasoning being that unless there was a clear and present danger, the hateful speech could be countered in the marketplace of ideas by other speech.

This reasoning may have had some validity in the pre-internet, pre-cable TV era.  But now it is a specious argument.  We live in an era where many people lead very polarized, insular lives.  Because of the advent of the internet and cable television, people now can and do listen only to news and pundits that agree with their point of view.  If they hear an opposing viewpoint, they dismiss it out of hand as being biased or ill-informed.

We also live in an age where information goes viral, which is to say that like a virus, the information spreads very quickly.  Given these two factors, together with the fact that guns are readily available and there seems to be less inhibition to using them against people, hate speech has a heightened  ability to cause a clear and present danger to the physical or mental well-being of an individual or group of individuals.  And it therefore should be banned.

Interestingly, the loudest opponents of such a law would be liberals, for whom the right of free speech is sacrosanct.  But as discussed, the right is not absolute, and such a law would not be a “slippery slope” leading to further restrictions on free speech.

Regarding those who create hate speech, they should not be able to disingenuously claim the protection of free speech.  The court has made clear that people are to be protected from a clear and present danger of violence.  In the case of much hate speech, it is clearly the intent of the speaker or writer to foment violence against individuals or groups based on an emotional hatred.  That one has no way of knowing whether someone will act on that incitement should not protect such speech.  By the time someone acts, it is too late.

And for those many instances in which hate speech deals with a legislative agenda, it should also be banned.  While there is certainly time for opposing viewpoints to be aired, the marketplace of ideas is not functioning very well in our current polarized internet/cable TV environment.  

But more fundamentally, hate speech has no place in a civilized society.  Just as a society has the right to protect consumers from false advertising and children from obscenity, society has the right and I would say the duty to protect people from hate speech.  Both the haters and those who are the object of hate suffer as a result of such speech.

A Troubled Republic On This July 4th

As we celebrate this July 4^th, the state of our republic is troubled. Two core principles of American democracy are under attack … the role of government and the democratic process. And the attack is cynically being waged under the banner of protecting our system and our rights from the power of government.

As we all know, the Declaration of Independence’s most famous line is, “All men are created equal,” and that they have “unalienable rights to life, liberty, and the pursuit of happiness.”

Less commonly known are the words that follow … “That to secure these rights, governments are instituted among men.” In other words, the role of government is to act in a way so as to secure the rights of the people to equality, life, liberty, and the pursuit of happiness.

Both of these thoughts were truly revolutionary in a world where governments were in the hands of and benefited solely those with power and wealth. This new view of the role of government and the equality of all people was the cornerstone of the American republic, despite the fact that it would take almost a century for African-Americans to become legally equal and another 50 years for women.

Over the course of the last century, after suffrage was made universal and all citizens were finally deemed to have the rights embodied in the Declaration, the role of government in securing those unalienable rights for all evolved of necessity to helping the less fortunate through a variety of government programs.  Prominent among them have been universal education, Social Security, labor laws, government welfare, and Medicare/Medicaid.

Without these programs, government recognized that the legal equality of all people was meaningless. People needed to be given real equal opportunity to pursue their rights. Both Republicans and Democrats agreed on this basic principle, but would of course regularly disagree on the particulars of government programs to secure that equality.

With regards to the process of our democracy since universal suffrage, it can best be summarized by the dictum, “One man, one vote.” This means that every citizen of voting age should be able to vote and that each person’s vote should count the same.

Viewed in this light, the Supreme Court’s decision in Citizens United makes a farce of our democratic process by caring only for form, not substance. If those with wealth and power have the ability through television advertising to in effect control an election because of the disproportionate influence of such advertising, then those with wealth and power have achieved their aims through the back door.  Who votes is of little consequence if the real power lies elsewhere.

Only if candidates are on an equal or relatively equal financial footing can there be the fair contest of ideas that is essential to our democracy and to the efficacy of freedom of speech.

The health of our economy and the business community is of vital importance to the health of our country and the welfare of its citizens. But we have long since passed the day when one would say, “What’s good for General Motors, is good for the country.” The same criticism holds true for the radical pro-business, anti-government policies of the Koch brothers, the Tea Party, and their Republican allies. Our democracy depends on a balance between private rights, the public good, and government.

We are as Lincoln said, a government “of the people, by the people, and for the people.” Let us not pervert that heritage by making our system a government “of big business, by big business, and for big business.” Let us learn from the past, not return to it.

What the Catholic bishops seek is religious tyranny, not religious liberty

In perhaps one of their most deceitful efforts, the Conference of Roman Catholic Bishops yesterday sought to recast their opposition to abortion and same-sex marriage as a struggle for “religious liberty” against a government that is impinging on the church’s rights.  As reported in The New York Times today, they cited that Catholic agencies that receive state funding in Illinois and a few other states had been “forced” to stop providing adoption and foster care services because the state required them to provide the same services to same-sex couples as heterosexual couples.

Let’s talk about religious liberty.  The right protected by the Constitution is that the government can make no law prohibiting the free exercise ones religion or “respecting an establishment of religion.”

In their vocal opposition to abortion rights and same-sex marriage, not just as a moral issue but to get the government to prohibit women from getting abortions and prohibit same-sex civil marriage, the bishops are in fact seeking to impose their religious views on the rest of the nation through government action. That would violate both the rights of the members of other religions who do not believe that abortions should be prohibited to practice their religion, and it would thus in fact if not in language be a law respecting the establishment of religion by preferring one religious viewpoint over others. 

This is an example of religious tyranny, not religious liberty.  If Catholics were forced to have abortions or if the Catholic church were forced to perform same-sex marriages, that would be a violation of religious liberty.  But that is not what is involved here.  Even on the same-sex marriage issue, no one is suggesting that churches be forced to perform or recognize such marriages.  It is solely a civil government matter.

What about their argument that they are being “forced” to abandon adoption and foster care services? Again, this is simply not the case.  The church’s agencies are perfectly free to provide such services solely to heterosexuals and discriminate against same-sex couples. All laws regarding sexual orientation rights provide for exempting religious institutions who oppose homosexuality.

However, if they choose to apply for state aid for these services, then they must comply with state rules, both legislated and constitutional, regarding the use of state funds.  That in no way prohibits their religious liberty.  If they want to continue discriminating, they are free to do so … just without state aid.

It is shameful that the bishops have cloaked their attempt at religious tyranny and their desire to use state funds to discriminate under the banner of religious liberty.

Pastors want to have their cake and eat it too

The New York Times has reported that there is a movement afoot by evangelical and other pastors to flout the IRS rule that prohibits churches, as tax-exempt organizations, from campaigning in elections.  They are going so far as to send the IRS tapes of their sermons.  

Clearly they wish the IRS to take action so that they can then sue the IRS.   As the Rev. James Garlow was reported in The New York Times as saying, “There should be no government intrusion in the pulpit.  The freedom of speech and the freedom of religion means pastors have full authority to say what they want to say.”

Of course … and they do have the right to say what they want to say.   There’s only one problem.  They have sought to be exempt from taxes by filing with the IRS as 501c(3) non-profit organizations.  One of the many rules for being entitled to this status and its exemption from taxes is that organizations cannot speak out for or against a candidate in an election … in effect, no campaigning.

It is important to note that the IRS provision does not prohibit all political speech.  Churches can be involved in educating their members on the issues in a non-partisan manner and individual members, even pastors, can speak out directly for or against a candidate if they do not do so using the church’s financial resources, facilities, or personnel and make clear they are speaking on their own behalf, not the church’s.

This rule applies to all 501c(3) organizations … not just churches.  It has nothing to do with freedom of religion.  If pastors want to be free to campaign from the pulpit and get their church involved in campaigns, then they just have to withdraw their churches from 501c(3) status.  The choice is theirs.

Hate Speech Has No Redeeming Social Value and Should Be Prohibited

Chief Justice Roberts was right when he wrote in yesterday’s opinion protecting the speech of protestors at a military funeral that “debate on public issues should be robust, uninhibited and wide-open.”   However, the particular speech in this case that he and the seven concurring justices ruled was protected by the 1st Amendment consisted of, “God Hates Fags,”  “God Hates Your Tears,” and “Thank God for Dead Soldiers.”

As Justice Alito said in his lone dissent, these words are more like fighting words … a “vicious, verbal assault … brutalizing innocent victims.”  For once I agree with Justice Alito.

The United States has a long history of upholding the most heinous forms of speech, so long as that speech does not directly incite violence or otherwise endanger people.  Most of the countries of Europe and Canada, on the other hand, have laws that criminalize hate speech.

Why the difference?  Part of the difference stems from Europe’s experience with the Holocaust.   They understand more clearly the evil that hate speech can bring about.

But mostly the reason lies with the interpretation of our 1^st Amendment, which prohibits any laws that infringe on the freedom of speech.  Absent a “clear and present danger,” the courts have generally held that even the most vile and hateful speech is protected.

So the result, for example, is that while it is illegal to discriminate against someone on the basis of race, religion, etc., it is not against the law to encourage hatred against African-Americans, Jews, or any other group.

The question that must be asked is, why is discrimination prohibited but hate speech allowed?  There is no rational answer.   The answer is historical … the right of free speech has long been a sacred cow of American constitutional jurisprudence. 

But hate speech does not foster reasoned debate on issues of national import.  Rather it fosters just the opposite.  It fosters at a minimum highly emotional positions that actually hinder reasoned debate, and at worst it fosters an atmosphere of fear that can lead to violence.  Additionally, it tears apart our social fabric.  Thus, even absent a “clear and present danger,” there is no reason to protect such speech.

The argument against prohibiting such speech is that it presents a “slippery slope.”  Once you allow for one type of speech to be prohibited, where do you draw the line? 

But the right already is deemed not to be absolute.  Thus the question becomes whether such speech has value … “redeeming social value” in the context of the obscenity cases … to America’s marketplace of ideas, to the furtherance of rational discourse.

The answer is, “no.”  We prohibit discrimination, we prohibit hate crimes, we should prohibit hate speech.  

The Need for a Truth in Politics Law: De-Frauding American Politics

“Have you no sense of decency, sir, at long last?”  With those words, an Army lawyer took Senator Joe McCarthy to task and helped end McCarthy’s destructive un-American witch-hunt.  The time has come to say the same to the Rush Limbaughs and Sarah Palins of the chattering class and stop their vile perversion of our right to free speech.

American politics has always been rife with misleading statements and at times outright falsehoods.   Mendacity just seems to be an ever-present aspect of politics.  But during the past decade, and especially this past year, things have taken an especially nasty turn, becoming so aggressive and incendiary as to pose a real threat to the health and well-being of our nation’s democracy.

What has become of this country?   Time reported that a “plurality of Arkansans think that Barack Obama is not a U.S. citizen.” The health care reform debate was hijacked by fears that the law would create “death panels” and that it contained “Hitler-like” policies. The silly fear that the reform legislation posed the threat of creeping socialism was by comparison quaint.  All, by the way, Republican scams.

These are all incredulous positions that fly in the face of reality.   Why then do so many Americans, not just a small radical fringe, hold these beliefs so adamantly?  The answer is clear … political commentators they respect, such as Rush Limbaugh, Glenn Beck, and Sarah Palin, have taken to extreme demagoguery to create a rabid, angry voter block.  Perhaps even more damning, not a single Republican member of Congress has refuted these scurrilous accusations.  Some old-line conservative commentators did call these lies for what they are, but unfortunately, they don’t carry much weight these days.

If actors on the political scene are so ready to pervert the truth, if they feel no ethical constraints, if they have no shame, we have reached a point where the American people need a Truth In Politics law to protect them.

To this suggestion, both liberals and conservatives will no doubt react with horror and raise the flag of the Constitution’s 1^st Amendment right of free speech.   But the right of free speech is not absolute.  Courts have long recognized that one cannot cry “fire” in a crowded theater because of the threat to the public safety that would result.  Inciting to riot is also not protected by the 1^st Amendment. 

More on point is the Truth in Advertising law that protects consumers from deceptive advertising.  Specifically, under Federal law, advertising must be truthful and non-deceptive; there must be evidence to back up any claims made; and ads cannot be unfair.  The law is enforced by the Federal Trade Commission.

Why is this important exception made to the Constitution’s right of free speech?   The reasoning behind this, and other consumer protection laws, is that the consumer is at a disadvantage vis a vis the businesses that cater to them … in this instance because they don’t have the ability to reasonably determine for themselves the truthfulness of advertising claims and that they therefore might make purchase decisions that either actually cause harm or are otherwise detrimental to them.

If consumers can be protected from false and deceptive advertising, surely the general public should be protected from false and deceptive claims in political statements and advertising that are “likely to mislead and be detrimental.” The danger here is twofold … first, citizens will cast their vote or take other action in ways they wouldn’t if they knew the truth, acting contrary to their interests … such ads are thus another type of fraud used to alter election outcomes and policy decisions; second, these incendiary falsehoods are creating an emotional angry atmosphere making meaningful substantive debate on the issues impossible, thereby stifling the lifeblood of American democracy … the marketplace of ideas.

Those opposed to a Truth in Politics law will say that there is still ample opportunity for individual citizens to determine the truth, that public debate exposes all falsehoods.  That’s the point of free speech.  There’s even a website, factcheck.org, that enables people to check the accuracy of statements made by politicians.

But this argument does not reflect the polarized nature of today’s politics and body politic.  In today’s world, if you are on one side, and someone on the other side says that your leader is lying, there’s no chance of that being heard or believed.   Fact-checking is only done by people who are rational, who are seeking the truth.  Since so much of today’s debate appeals to the emotions, reasoned thought is a scarce commodity.

Also, today, misinformation spreads at such a speed and depth as to make refutation practically ineffective.  The impact of media political commentators, the internet, and You Tube videos is such that a new phrase has been coined … a charge is said to “have gone viral” because it has spread so rapidly and so broadly.   While charges can be, and have been, refuted, there is no chance for the damage to be stemmed.

No, much as it goes against my grain and the grain of most Americans, we have reached that point where to save our democracy, we must enact a Truth in Politics law.  We can no longer depend on ethics or rational thought to save us from the demagogues.