Faith-based hiring

As profoundly IRRITATING as I find it, I must admit that this forum is causing me to reassess my understanding of the "wall of separation".

I am having a great deal of trouble understanding how to reconcile the Wall as a principal of constitutional law with the commissioning of Armed Forces chaplains, the federal subsidy of students in church connected colleges, the expendature of public money to support research in church related schools...

So, you see? I am not as rigid as you all thought!

 

Here's the relevant text from

EVERSON v. BOARD OF EDUCATION OF THE TOWNSHIP OF EWING ET AL.
SUPREME COURT OF THE UNITED STATES
330 U.S. 1 - February 10, 1947

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."

I think that everyone agrees that this subject can be murky and isn't always clearly delineated. I also assume that some of the practices you cite, like military chaplains, could be challenged in court if anyone were motivated to do so. (I don't know if it would be succesful, but the opinions might clarify things by forcing the courts to address grey areas.)

Personally, I think that the chaplains' greatest vulnerability isn't that government funds them. That seems to be done in such a way that there is no pressure for soldiers to adopt religious belief. Rather, religious services are provided to those soldiers who desire them, consistent with the free exercise clause. Chaplains just make it possible for military personnel in difficult conditions to practice their religion if they choose to do so.

Rather, chaplains' vulnerability probably lies more in things like the requirement that they have the equivalent of a Christian M.Div. with government recognized accreditation. Training clergy in academic degree programs is a Western practice not followed by some non-Christian religions. And while the government recognizes several specialized Christian and Jewish accreditors, other religions aren't so lucky.

If I were arguing this (I'm not an attorney), I'd probably try a strategy like comparing these practices to poll taxes. Poll taxes ostensibly had race-neutral purposes, but in effect they made it more difficult for black Americans to exercise their franchise.

(Actually, I think that the real-life harm caused by this is minimal and it might be kind of anal to go to court over it. I'm just discussing the principle involved.)

Concerning government funded "faith-based" social services, the situation is rather different.

It is very unlikely that any single locality will make available precisely equal provision of social services by every imaginable variety of religion. In fact, given American demographics, these "faith-based" services will be almost certainly be overwhelmingly Christian.

And given the realities of government budgets, as more of the social service budget goes to the "faith-based" initiatives, less money will go to religion-neutral services, with a resulting reduction of those services.

So the effect of this initiative will be that the government will provide more services and additional options to those willing to pay the price of receiving religious proselytization and doctrinal instruction delivered along with their services. In other words, the government would be putting subtle pressure on the population to adopt religious faith.

That clearly breaches the Wall as defined in Everson above, and doesn't seem to be defensible under the free-exercise clause in the manner of military chaplains.

 

You're all quite right that many things accepted without question by most violatate Everson. The rub is, a lot of us in the law, irregardless of our opinions on religion, believe that Everson was just another in a long line of judicial reaches by the Supreme Court, an attempt to mold the Constitution into a reflection of the "generally-accepted societal evolution" as defined, of course, by a majority of lawyers in black robes. This time it was by the Vinson Court, not generally considered a hotbed of judicial activism.

Many of us believe the Constitution and the concept of precedent deserve a bit more deference in our system. And now we're stuck with this nearly 60-year old piece of "precedent" that itself turned over a century and a half of precedence on its head with little judicial reasoning, just an announcement that it was to be so.

It shouldn't be that easy; precedent should mean something, the meaning of words should mean something. The easier it becomes to jettison precedent at will, the less we have a Constitution, and the freedoms supposedly guaranteed by the Bill of Rights, the 14th Amendment, etc, become cheapened as they're made to mean whatever 5/9 of those lawyers in black robes think they mean.

Constitutional jurisprudence should be something more than taking a snapshot of whatever direction society is purportedly taking at the moment.

 

little fauss:

Odd. When it comes to the death penalty, you believe that the Supreme Court should not deviate from established precedent but when it comes to separation of Church and state, you want to jettison two hundred years of jurisprudence.

 

I don't find that odd, I find it completely predictable and in keeping with ultra-right wing views on gradually transforming our nation into a quasi police state/theocracy.....

In other words - "death penalty = GOOD"; "separation of church & state = BAD" in their twisted minds.....

 

I Hate statements like these! It is fundamentally IMPOSSIBLE to know about how the founding fathers would feel, react, or say about anything going on in the world today.

You may be right... You may be wrong...

But we will NEVER know!

Sorry about that, but I had to get that off my chest. It's a pet peeve of my mine when people speak (or type) in absolutes.

 

Impossible? Come, now! If one wants to know what the Founding Fathers thought about this, that, or the other topic, plenty of them have left behind all kinds of political writings. If any generation cares less what the Founders thought or wishes to jettison the Constitution, then do so honestly, by calling a new constitutional convention for the explicit purpose of jettisoning the old Constitution (and possibly writing a new one). But please don't tell me that the Constitution authorizes nine black-robed priests of Satan to throw ot the Constitution and act as a pseudolegislature imperiously enacting their own worthless opinions into law.

 

Wow! All NINE are priests of Satan? What are the ODDS?

 

I thought it was just Scalia...

 

Well, nowadays, two of them are priestesses.

 

Ted,

That's not what I'm saying. What I'm saying is tht when someone says that someone dead would feel a certain way, there is no way to know, making the statement irrelevant.

So, if you were to say that Ben Franklin, or George Washington would be upset about the current court system, how do you know? Shall we go ask them? I doubt we'll get an answer.

 

Personally, I'd rather have the exhumed corpse of either of those gentlemen as our current President than the very-much-alive one that we actually do have....

 

I'm astonished and dismayed, Nosborne--are you really serious? I understand why Carl--given his ignorance of the subject at hand and his biases--would launch his ad hominem jab, I expect it, but for you to make such a statement!

What 200 years of jurisprudence?

The modern Everson-created conception of the Establishment Clause is itself an utter deviation from over a century and a half of precedent, understanding and government actions based on the First Amendment.

For goodness sakes, man, you had official government-sponsored religious everything for 150 years and for the great majority a challenge to it was hardly even pondered--so sure were the Founders, the subsequent government and civic leaders--the country as a whole--that such did not involve a government "establishment" of religion. You know as well as I that our modern conception of this clause is perfectly contradictory to the huge body of precedent that existed forever pre-Everson.

When did any court for the first 150 years of our Union elocute anything like our modern conception that announced the new prinicple of the "strict wall"?

Again, let me reiterate, I'm not talking about what is/is not good public policy, I'm talking about what is good jurisprudence. Everson was a departure from precedent, not a reaffirmation. For you to pretend otherwise is, in this case, just wrong. What gives me pause is that I know you're not ignorant of this fact, I've read your posts, you know your stuff, and you know what you typed--you must know--was disingenuous at best.

 

Well, I'll go take a look but I have to say that Jefferson and company really DIDN'T trust churches...

 

If I were a judge and it were my job to interpret the provisions of a contract, I would look at the plain language of the contract first. If there was some ambiguity or question, I would look at a number of things, including custom in the industry of the parties to the contract, past dealings between the parties, other documents written by the parties contemporaneous with the contract or after the fact that might help explain what was meant by the contract.

In short, I'd look at whatever relaible data was at hand to explain the contract where it failed to explain itself. This is solid legal doctrine, this is the manner in which courts operate.

Now, if the judge simply said "One or more parties to this contract has died, ergo we can't possibly know what they meant" and then interpreted this contract in whatever manner he or she wanted, per their own personal tastes or idiosyncratic analysis of what would be "best for society" or "best reflect societal evolution", we'd justifiably have very little respect for that decision as a matter of contractual analysis, even if we agreed with the judge's take on social policy.

Now take it further, what if in the case above there was also a large body of evidence as described in my first paragraph explaining precisely--or very nearly so--what the deceased contracting parties did really want and did really mean? And what if there was ample evidence that both they and most others affected by the contract acted precisely in line with this original meaning and almost precisely opposite from the judge's spin? Again, you might like the new policy spin, you might hate the results of the old contract if enforced per its original understanding, but if you're intellectual honest, you're going to have to admit that the judge's actions, strictly in terms of contractual analysis, are sophistry, silly.

As for the argument as to whether Ben Franklin would like what he sees, he might, he might not, but who cares? That's irrelevant. What's relevant is whether what is being done is anything like the meaning of the Constitution.

There is tremendous evidence as to the Constitution's original meaning, to state otherwise is blind ignorance. To presuppose that our modern judicial spin is even close to this original understanding is absurd, because those judges doing the spinning don't think it is, they just don't give a you-know-what; they are more interested, as C.J. Warren was fond of saying, in "results", not jurisprudence.

 

Well, it seems that the Wall isn't as absolute as some would think (but I've already stated that I have become uncertain on this point due to the discussions in this forum) but there really is NO doubt that the government should not be in the position of paying for the propogation of the faith, any faith. I think that's what this thread is all about.

 

Nosborne, I might even agree with you as a matter of public policy. I'm not dogmatic on this matter; I personally don't think that faith is benefitted by excessive entaglement with government; people--in conjunction with the Almighty--spread faith, governments spread politics.

I believe that God transcends politics.

But the discussion took a turn into jurisprudence, and I think you or anyone else is just baling from a sinking vessel if you're suggesting that our modern "separation" is valid from a strictly constitutional analysis, or that those judges who are forever finding esoteric meanings and understandings in the Constitution are doing anything more than enacting their own view of what's right and wrong into policy.

It's perfectly fine to do that in the political, legislative arenas, that's the legitimate task of citizens in a republic, but jurisprudence is something different, when it becomes politicized, "seduced" as Bork would say, it becomes a tool in the hands of the ruling elite and ceases to be a protector of the people. The same spirit that gave us Dred Scott and Lochner gave us Everson and now gives us the latest pronouncement on the death penalty. The one constant is that the little guy, the common man--the one who the Bill of Rights was supposed to protect--is disregarded, sneered at by the elites who cannot be overtuned by any legislature elected by the common man.

Why this doesn't strike people as having more in common with King George III than those who rebelled against him is beyond me.

 

I'm not an historian, but I think that talking too glibly about "the framers' original intent" can be misleading.

That's because the people who wrote the Bill of Rights weren't always of a single mind, nor were they all in full agreement with each other. What we have are compromises that are the work of committees.

With regards to the language of the establishment clause, James Madison introduced this original draft of the First Amendment to a committee of the House of Representatives:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed."

Then New Hampshire Representative Samuel Livermore proposed this more direct version:

"Congress shall make no law touching religion, or infringing the right of conscience."

Madison immediately withdrew his own proposal and endorsed Livermore's, which was passed by vote of the House of Representatives.

Then Madison chaired the conference committee assigned to negotiate wording with the Senate. That committee produced the wording that we have today:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

OK, there seem to be two broad theories about what the framers meant:

1. The framers' intent was narrow: to prevent the establishment of a state religious denomination such as the Church of England or the Catholic church in Spain. But they had no objection to state support and promotion of religion in general (and Christianity specifically) as long as the favoritism was non-denominational.

2. The framers' intention was broad: to prevent the state from interjecting itself in any way into matters of faith and religious conscience.

Madison's original draft was ambiguous on this point and could perhaps be read as favoring either interpretation. But Madison subsequently deferred to Livermore, whose version was clearly the broad one and sounds rather like the 'wall of separation' (a phrase that I believe Thomas Jefferson coined). That was the version that the House passed.

The House-Senate conference committee then settled on a slightly more ambiguous version, by substituting "an establishment of religion" for "touching religion".

But the intent seems clear enough: Government was not to interfere with people's free exercise of their chosen religion, nor was it to use state power to impose religion on people who did not freely choose it.

In my opinion the two clauses (establishment and free exercise) seem to logically imply one another: If government is going to recognize the people's right to free exercise of their own religious conscience, then it can't be stacking the deck. And if the state is not permitted to stack the deck, then it must leave those decisions up to the people.

If there is still some question about where Madison himself stood, he had already made his opinion clear in his Memorial and Remonstrance of 1785, written in strong opposition to a Virginia state bill authorizing state subsidies for Christian clergy (to be allocated on a non-sectarian basis).

Jefferson responded to the same Virginia bill with his own proposed Virginia Statute for Religious Freedom, which read in part:

"...that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern...

That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened, in his body or goods..."

Obviously people like Madison, Jefferson and Livermore weren't the only voices around. They were opposed by people like Patrick Henry who argued in the Virginia instance that state support for Christianity in general would further the goal of promoting public morals.

But my point is simply that the broad interpretation was definitely contemplated during the deliberations when the wording of the First Amendment was adopted. It isn't an evil corruption of the framer's original intent that was subsequently forced on us by modern Satanic courts.

The idea of forbidding state power from interfering in matters of religious conscience was a fundamental part of the conversation from the very beginning.

 

The problem with your thesis is that:

1). That's not at all the way the populace acted in reliance upon the Bill of Rights. When you look to a contract, one evidence of what it meant is the manner in which the parties to it acted in reliance upon it, and they just didn't act as if there were a wall as defined by our modern conception. As I've previously pointed out, the clear actions of the government in supporting all manner of religion with federal government monies, and the fact that this was done without serious challenge for decades, really more like a century-and-a-half, demonstrates clearly that they intended nothing like what you suggest Livermore intended.

Madison may have been against a particular bill, and Jefferson's opinions don't surprise me, he was a man ahead of his time in certain respects, being very much influenced in his thought by the Enlightenment, but this aside, you did not say whether these protests manifested themselves in lawsuits challenging the cnstitutionality of the bills--they did not, did they. Jefferson and Madison knew full well that personal policy preferenbces aside, what these states were proposing was constitutional! Again, my beef is not with public policy, it's with what is or is not constitutional.

They did not respect a "Wall of Separation" in government actions, not even close. The wall mentioned by Jefferson was a wall intended to protect a little Baptist church from the state's interference, not to prohibit the government from supporting religion with tax dollars or proclamations, or hiring a chaplain for congress or military personnel, or sending money to religious charities to support work in the inner cities, or chiseling the Ten Commandments into the wall of a government building.

2). You've missed a very important distinction that they respected but that we no longer make.

As for number 2, a little background: in 1787, the states wrote up a contract which established a national government--we call it the Constitution. Many in the newly-formed union were clamoring for a statement of the peoples' and states' rights to be included in this document, some state legislatures were anything but decided upon ratifying the Constitution as a result of this omission. The Framers then bowed to pressures to write up a people's rights manifesto as an addendum. Two years later, we had the Bill of Rights. Now the restrictions of the Bill of Rights were written to restrict the national government only, NOT THE STATES, states didn't want to jettison all their sovereignty.

That's an important distinction, because it sheds a bright light upon the intent of the Framers. In short, they intended to prohibit this new NATIONAL government from imposing a religion upon all of the states, but they in no manner intended this restriction to forbid states from even establishing official state religions if they so chose. Few people know nowdays that during the Revolutionary period, a majority of the states had official state religions. I think Virginia was Episcopalian and New Jersey was Presbyterian, for example. The Founders were not afraid so much of this--or if they were they sure didn't express these fears in the Constitution--but they'd had enough of nationally-imposed top down religious dominance from England with the national church there and the numerous conflicts between it and the Catholic church. They were likely raised hearing stories of the oppression of their forefathers, and they were certainly aware of the strife in England vis-a-vis the national religion.

It was only about a century later that the Bill of Rights provisions started being incorprated to the states through the 14th Amendment. This was controversial 100+ years ago, the idea that the states should be subject to the provisions of a document clearly written to restrict the NATIONAL government while leaving open broad powers to the states, but over time, it has become accepted, commonplace. Now most of the provisions of the Bill of Rights do apply to the states.

Let me put it this way: the Founding Fathers, whatever arguments they were having about the wording of the Establishment and Free Exercise clauses, could not possibly have meant that it would restrict government support of religion in the manner that the Supreme Court now holds.

Had the Founding Fathers knew that there would one day be a great war within the union that would lead to an amendment that contained a phrase that crafty judges would use to apply the restrictions of the Bill of Rights to the states, and that the restrictions they were writing for the national government would also bear upon the states, they would've been aghast. Had they known that one day 200+ years later we would be even arguing this point, that the government can't support religion in any way or it violates the Establishment Clause, they would likely be rolling on the floor in hilarity.

This was never intended, and it's wrong that our law has been hijacked by judicial fiat rather than popular vote or constitutional amendement.