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Monday, June 27, 2005
Offense at What? Classes of Citizens?
Ten Commandments | Posted by Douglas Laycock at 05:20 PM
I haven't read Thomas yet. But I quite agree that "offense at seeing the Ten Commandments" is not the sort of harm against which the Establishment Clause protects. It is offense at seeing the government post the Ten Commandments, thereby taking a position on religious questions and trying to persuade religious minorities to adopt the government's preferred religious views.
It is true that religious minorities can try to get government to endorse their religious views too, and will occasionally succeed, just as Baptists occasionally won parish elections in 18th-century Massachusetts. But that just highlights a core part of the problem: when we let government take positions on religious questions, we are implicitly or explicitly voting on religion -- voting on which religious views deserve endorsement. The religions that Jack Balkin says are labeled second class are the religions that regularly lose those explicit or implicit elections.
The process of voting on religion, of the electorate choosing the true religious view, should scare evangelicals as much as anybody. But like the Congregationalists in Massachusetts, they don't see a problem as long as they win most of these implicit elections -- and as long as losing only means that no display goes up, not that some other religion's display goes up. The Congregationalists learned when the Unitarians started winning elections.
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Comments
I don't consider the Goverment "activley promoting" a religion by allowing the ten commandmrnts to be seen. What is next? Removing in God We Trust from currency? By the way, I am not a religous fanatic. I am agnostic, and have not been to a religous service since my mothers funeral ten years ago. RON
Posted by: Ron at June 27, 2005 06:16 PM
This post (and others like it) fail to realize that "endorsement of religious views" is, in fact, one of the prime purposes of government. In order to maintain order in society, "bad" behavior must be distinguised from "good" behavior. In general, the derivation of "good" vs "bad" is an exercise in tracing the logical consequence of some ultimately unprovable truth, whether it be the Ten Commandments or the Origin of the Species or the Big Bang. It is absolutely non-sensical to say the government should not "take positions on religious questions", because every question of law relates to whether some action is "good" or "bad", which makes all questions inherently religious in nature. This is what makes the current controversy deliciously ironic, as this statement is the actual message behind the commandments displays. Now of course, the free exercise clause guarantees the right to beleive anything they want - but the establishment clause does not prevent citizens of good faith from enacting laws derived from their religous beliefs, which is another way of saying "gettng the government to endorse their beliefs". Having the government erect a monument that describe where these beliefs come from is simply stating a plain truth - it does establishm a religion, nor does it coerce others and inhibit the exercise of their religion.
Posted by: Ben Kennedy at June 27, 2005 11:05 PM
because every question of law relates to whether some action is "good" or "bad", which makes all questions inherently religious in nature.
This is quite wrong. Please explain how, for instance, standing rules or contracts damages measurments, which are inarguably questions of law, are inherently religious in nature. This one might be easier, but explain how the lengths of criminal sentences are religious. How are the rules determing who is and is not a legislator religious in nature?
I can imagine the answer being: There are good rules of this sort, and their are bad rules of this sort.
But if one thinks acknowledging the existence of better and worse results is sufficient for something to be a religion, one is greviously denigrating religion.
Posted by: washerdreyer at June 28, 2005 04:19 PM
Certainly damage amounts and sentence lengths are directly proportiol to the perceived weight of the crime - as societal norms change, sentences shorten and laws stop getting enforced. Even rules governing elections, such as who can vote and who can run for office, have roots in what you believe to be the nature of man and government, often stemming from quasi-religious statements like "all men are created equal". All laws concering the upholding of justice are essentially moral/religious in nature.
As for your belief that I am denigrating religion, I am merely pointing out that everyones decisions are informed by some world view, which for most people is a religion in the tradional sense. Rather them diminishing religion, I am elevating to its rightful status as the world view posessed by many people that controls their most basic decisions, rather than something private that can be shelved indefinately and completely divorced from public thought. Certainly an atheist would not call themselves religious, but ultimately they posess a world view based on unprovable assumptions, just like Christians or Hindus. I know most atheists/secularists would resist categorizing their belief system as a "religion", but there it is.
Posted by: Ben Kennedy at June 28, 2005 08:53 PM
Hey! Somebody else who thinks like me! WOW!
I'm with Ben. Laws are based on moral weights, which are based on religion (defined broadly).
Example: "Please explain how, for instance, standing rules or contracts damages measurments, which are inarguably questions of law, are inherently religious in nature."
Simple. Some religions don't think breaking a contract is always bad (Islam, contracts with infidels, for one easy example). Why is breaking a contract bad? You tell me - and don't resort to religion. "Because it is!" is religious in nature (unprovable asserion).
Posted by: Deoxy at June 29, 2005 11:28 AM
Douglas Laycock writes: “I haven't read Thomas yet. But I quite agree that "offense at seeing the Ten Commandments" is not the sort of harm against which the Establishment Clause protects. It is offense at seeing the government post the Ten Commandments, thereby taking a position on religious questions and trying to persuade religious minorities to adopt the government's preferred religious views.â€
Laycock appears to understand the Establishment Clause to require that the state not “take a position on religious questions.†I believe that this is a mistake. The natural rights philosophy that gave birth to the religious freedom protected by the Constitution is grounded upon the philosophical truth that “God has created the mind free.†This philosophical truth, which is known by reason, is compatible with many religions (though not all). It most definitely takes a position on a religious question—namely, it posits that religious freedom is ordained by “God†(note that “God†is left undefined; it may refer to the Christian God or to “nature and nature’s Godâ€). To say the same thing differently, the very foundation of the natural and constitutional right to religious freedom “takes a position on a religious question.†Laycock’s reading of the Establishment Clause (which appears to be shared by several sitting members of the Supreme Court) thus rejects the very foundation upon which the right to religious freedom rests.
Posted by: Phillip Munoz at June 30, 2005 10:43 AM