Pushing the Limits of Church and State

Monday, February 15, 2010


The New York Times Magazine, a weekly publication where they get to put longer stories and points of interest than what appears in their normal paper, recently published How Christian Were The Founders, an article that highlights the Christian Fundamentalist movement to effectively rewrite American history from a Christian-centric point of view. Highlighted in the article is the Texas Board of Education and and several opinions from Christian-based law schools.

More specifically, this movement focuses on American's founding fathers having a deeply Christian motivation for creating this country the way they did, as substantiated by early-American texts such as the Declaration of Independence, the Mayflower Compact and the Fundamental Orders of Connecticut. This is, the movement contends, supposed to be a Christian nation and our early historic documents verify that.

One of the most interesting cases made (and by "interesting" I mean "a stretch") for this is by Liberty University Law School's Cynthia Dunbar:

Dunbar began the lecture by discussing a national day of thanksgiving that Gen. George Washington called for after the defeat of the British at Saratoga in 1777 — showing, in her reckoning, a religious base in the thinking of the country’s founders...

...A student questioned the relevance of the 1777 event to the court rulings, because in 1777 the country did not yet have a Constitution. “And what did we have at that time?” Dunbar asked. Answer: “The Declaration of Independence.” She then discussed a legal practice called “incorporation by reference.” “When you have in one legal document reference to another, it pulls them together, so that they can’t be viewed as separate and distinct,” she said. “So you cannot read the Constitution distinct from the Declaration.” And the Declaration famously refers to a Creator and grounds itself in “the Laws of Nature and of Nature’s God.” Therefore, she said, the religiosity of the founders is not only established and rooted in a foundational document but linked to the Constitution. [emphasis added]
I checked with a few of my legal resources (my lawyer buddies) and asked them about this concept of "incorporation by reference." The consensus was this: incorporation by reference is often done in creating laws as well as in contract law and trust and estate law. But Constitutional Law, or in taking a non-legal document, like the Declaration, and trying to have any of its references incorporated into the Constitution is not an accurate use of that legal concept.

This entire article sets the stage for this: the movement focuses on tearing-down the "wall of separation" between church and state.
[Wallbuilders leader] David Barton reads the “church and state” letter to mean that Jefferson “believed, along with the other founders, that the First Amendment had been enacted only to prevent the federal establishment of a national denomination.” Barton goes on to claim, “ ‘Separation of church and state’ currently means almost exactly the opposite of what it originally meant.”
A response:
“The founders deliberately left the word ‘God’ out of the Constitution — but not because they were a bunch of atheists and deists,” says Susan Jacoby, author of “Freethinkers: A History of American Secularism.” “To them, mixing religion and government meant trouble.” The curious thing is that in trying to bring God into the Constitution, the activists — who say their goal is to follow the original intent of the founders — are ignoring the fact that the founders explicitly avoided religious language in that document.
I could fill line after line with examples in the article from one side or another in this debate, so instead I encourage you to read the article.

There are a few things at work here in this article. First is the Texas Board of Education. Unlike many other states, the Texas Board determines the curriculum and textbooks for the entire state, rather than district-by-district. Given the size of the Texas school system, and what that does to the price and content of textbooks across the country, what the Texas Bord decides arguably has a massive effect on the content of textbooks across the country.

The Texas Board is systematically allowing for religious content in public school books. This article not only shows how that is happening, and who the players are, but also how the Texas Board movement is hand-in-hand, conceptually and actually, with the overall "Christian Nation" movement across the country.

I have several problems with this. First, I believe the tactics they are using are misleading. Filling law school students' heads with erroneous legal interpretations is irrensponsible. Their goal there is to be able to start to challenge 1st amendment cases, with fresh Christian-law-trained minds, all the way up to SCOTUS...and perhaps even control SCOTUS one day. I admire the long-view strategy; that takes a level of commitment that I can't fathom! But it treads dangerously close to the establishment of a State religion.

Another problem I have is the blind, dogmatic following of the Texas Board with this approach. Specifically, here's one of my favorite gems:
Brown Bear Brown Bear, What Do You See?” It’s not an especially subversive-sounding title, but the author of this 1967 children’s picture book, Bill Martin Jr., lost his place in the Texas social-studies guidelines at last month’s board meeting due to what was thought to be un-American activity — to be precise, “very strong critiques of capitalism and the American system.” Martin, the creator of 300 children’s books, was removed from the list of cultural figures approved for study by third graders in the blizzard of amendments offered by board members...

..In this case, one board member sent an e-mail message with a reference to “Ethical Marxism,” by Bill Martin, to another board member, who suggested that anyone who wrote a book with such a title did not belong in the TEKS. As it turned out, Bill Martin and Bill Martin Jr. are two different people. But by that time, the author of “Brown Bear, Brown Bear” was out. “That’s a perfect example of these people’s lack of knowledge,” Miller says. “They’re coming forward with hundreds of amendments at the last minute. Don McLeroy had a four-inch stack of amendments, and they all just voted on them, whether or not they actually knew the content.[emphasis added]
It's fine for students to learn about the Mayflower Compact or any of the other semi-constitutional documents that preceded the actual Constitution, especially in terms of their overall impact on the final document we know and love today. But despite the rhetoric of only wanting to "acknowledge" the Christian contributions to the United States, this is an attempt to rewrite American history and establish Christianity as the single religion of the U.S., through our public school system (which is supposed to be the great democratizer).

Either you acknowledge every religion's impact on the formation of the country, or you stay secular and report the facts. I'm all for the latter. I can learn all the other stuff in the church of the denomination that I choose to attend. I am not hyperventilating about what they're doing; I don't think in the long run that our country will become some Christian Caliphate. But I do want to raise awareness. Our government is secular for a reason and what these folks are doing threatens to violate the 1st amendment and clearly establish a de-facto religion for the United States. That's not government's role, and that's not public education's role.

[/navel gazing]

19 comments:

steves 11:01 AM  

I have gone round and round with people on both sides of this debate and I am not any closer to knowing what the founders were or intended. One of my former professors, Frank Ravitch, has written a great deal on the Constitution and Religion, some of which can be found on Amazon and other booksellers. I have a copy of one of his article on my old computer. I will post it if I can find it.

Despite not knowing the answers and what would be most helpful as a society, I have made some conclusions:

1. Many of the founders were Christians, to some degree. Some were not and some weren't very active.

2. The founders either wanted or tolerated a relationship between that State and Church that would not pass muster in this day an age. For instance, federal funds were used to build churches on Indian Reservations.

3. While I would say that Christianity and Christian Philosophy had an impact on the formation of this country, there were other secular philosophical systems that had an impact.

In other words, I believe that the extreme positions of both sides get it wrong. While I think it is inaccurate to deny the role of Christianity in the founding of this country, I also have not seen any evidence that the Founders intended this to be a Christian nation (whatever that is supposed to be). I also think there is plenty of Biblical support for not having separation between Church and State. In other words, I don't think a close relationship is a benefit to either.

As for Texas, I am not going to pretend to understand what they do. Maybe Joel can chime in on that.

Filling law school students' heads with erroneous legal interpretations is irrensponsible.

It is, but the law, especially Con Law, is open to a wide degree of interpretation. Even if you ignore the fringe theories, there is plenty of legitimate debate.

I think everyone can agree that 1St Amendment doesn't allow for a State religion. The debate and disagreement comes from what other actions count as an Establishment of a religion.

steves 11:15 AM  

I found the article, if anybody wants a copy. It is around 118 pages, though half of that is probably citations and footnotes. It is critical of the current system of neutrality towards Establishment Clause cases.

Jon 1:05 PM  

The NYT article makes it clear how important it is for the entire country to support candidates for the Texas State Board of Education who are not theocratic ideologues. Two intelligent women with extensive knowledge of education are running, and deserve the support of all open minded Americans:
www.votejudyjennings.com
www.voterebecca.com

Mr Furious 1:58 PM  

Holy. Fucking. Shit.

I need to clear some time to weigh in on this.

[/brain exploding]

Monk-in-Training 1:59 PM  

Whenever I get into this discussion, the statement "Our nation was founded on Biblical Principles" or some such, by "Christians" men comes up.

I think Steves has it as correct as we can know in his conclusion #1, some were, some weren't.

I don't know that it really matters if they were or weren't; what I think matters is what they put into the Constitution and there isn't much of "Biblical Principles" in it.

In fact, when people say that phrase to me, I challenge them to "NAME ONE". You should see the blank looks I get. To date I haven’t had a specifically Christian principle taken from the pages of Holy Writ identified to me by one of those partisans.

Each one of the Founders who had held an office in Colonial Government had to break an oath sworn in the Sacred Name of Jesus Christ to support the Christian King, George III. Not something I personally ever want to do.

For example. I really don't see the principle of choosing one's own leaders anywhere in the Bible.. maybe a deacon here or there, but I am looking for more than that. The Scriptures are full of Divinely appointed leaders, but not so many chosen from the common folk.

Now on the other hand, the French Enlightenment was full of rights of Man, and voting and such. In our system, humans, not God, is shown as creating governments. This principle was placed in the preamble of the Constitution, and I assure you, the only system that is considered legitimate around the world these days is one founded on the consent of the governed. (at least tenuously and in theory)

Greece and Rome had voting in rudimentary forms, but Israelite nationhood knew nothing of the sort. All government and leadership came from or were descended from those whom God appointed. God uses prophets and lawgivers to teach the people, not regular folk.

Here is an interesting point. I happen to be into flags, and I know that all Christian nations had Crosses or other explicitly Christian symbols in their national symbols or flags.. why not America? Because the Founders specifically removed them, because our flags (our British flags) had Christian Crosses in it and were replaced by stars - not other types of Crosses.

Believe you me, this line of thinking is NOT popular in Christian Oklahoma. )

† Ubi caritas et amor, Deus ibi est

Br. James Patrick

Smitty 2:21 PM  

Thanks for weighing-in, Steve. You are my kind of go-to constitutional guy, despite that fact that on rare occasions, I disagree with you in a totally unqualified, ill-informed manner.

At any rate, some responses to your thoughts:

The founders either wanted or tolerated a relationship between that State and Church that would not pass muster in this day an age.

I did not know this. That said, the Constitution seems to be the end result of the long, drawn-out religious and philosophical battles of the "founders." And that document is decidedly neutral to the point of not mentioning it and staying away from it as a mandate of public discourse. This movement that I allude to in my piece is exactly the opposite: *requiring* as a mandate of public discourse.

While I think it is inaccurate to deny the role of Christianity in the founding of this country, I also have not seen any evidence that the Founders intended this to be a Christian nation (whatever that is supposed to be).

Agreed.

I also think there is plenty of Biblical support for not having separation between Church and State.

I see lots of secular support for their separation. It's not that I don't see biblical; it's that I just don't know what the bible would "say" about that. I believe you...I am hoping you'll expound.

especially Con Law, is open to a wide degree of interpretation.

I agree there. My point is that they are taking a legal concept - incorporation by reference - and are trying to use it to say that the Declaration and the Constitution are inexorably linked, and that therefore the Constitution DOES incorporate the Christian religion because the Declaration mentions God. There are erroneous there, because incorporation by reference only works when the 2nd document actually specifically mentions the first...which the Constitution clearly doesn't.

The debate and disagreement comes from what other actions count as an Establishment of a religion.

Exactly! I agree, and this is the gist of what I was stumbling towards. I think that this school board and its allies are specifically trying, overtly, to establish a State religion. This will then solve all their problems: Roe v Wade, prayer in schools, 10 commandments in public places, state money for religious schools, etc.

Smitty 2:32 PM  

Steve:

I found the article, if anybody wants a copy

Bring it next time we're together. I'll take it to work and make copies and give you the original back.

Monk:

Boy, I like you more and more every time you post here. Steve made mention of something, and I'd like him to expound, but I'd like you to weigh-in as well, if you'd be so kind. Steve said: I also think there is plenty of Biblical support for not having separation between Church and State.

You kind of expounded when you said: The Scriptures are full of Divinely appointed leaders, but not so many chosen from the common folk.

What I am after is this: are there concrete (or at least interpretive) examples where the separation of church and state is discouraged or actually listed as a big biblical no-no?

Like a "make no government that doesn't make me the center of debate?" [j/k]

The point is that though the bible may be interpreted in such was as to discourage a separation, our "founders" did it anyway.

steves 2:47 PM  

I also think there is plenty of Biblical support for not having separation between Church and State.

Oops. What I meant to say and what I think I said in the next sentence was that I didn't think there was anything in the Bible that said we should have a "Christian" government.

Monk, I think there are some general Christian principles in our form of government, but I also think they can be found in other philosophies.

Smitty 2:51 PM  

I think there are some general Christian principles in our form of government,

I know your comment was directed towards Monk, but just to add my 2 cents...

I think that anyone, given hindsight and time, can find a match between American Republic Democracy tenets and the tenets of any major organized religion or philosophical trip. I, like what I think you're saying, think that it's not that it's Christianity per se that holds exclusive sway over the laws and conduct of a free people.

Monk-in-Training 3:52 PM  

@ Steves

You said: general Christian principles in our form of government, but I also think they can be found in other philosophies.


What ones? I am not trying to be cranky only trying to further discussion and pin down the specific one(s) you mean. If it is 'Christian', HOW is it Christian? This is very easy to say, far less easy to pick out.

Oh, and I never said there wasn't, just that the proponents of that theory were unable to articulate a single "biblical principle"

:) Thank you Smitty. I enjoy this blog! I will attempt to respond to you later this evening.

ps Happy Mardi Gras to every one!

steves 7:34 PM  

The Founders (or at least most of them) believed that our basic fundamental rights came from God, not from the Government. Personally, I don't believe a faith in anything is required to enjoy rights, as it can be said that they exist outside of the Constitution.

As for specifics, I could throw out dozens of "Christian" quotes from various FF's, but they don't provide specific Biblical passages, so I don't really want to guess.

I think that anyone, given hindsight and time, can find a match between American Republic Democracy tenets and the tenets of any major organized religion or philosophical trip.

I think this is true and this is why we have an ongoing debate. In the end, I think it is not fair to gloss over our Christian origins, but I also don't think it is important to acknowledge other major influences.

Doug Indeap 11:04 PM  

Whatever Barton says should be taken with a grain of salt. As revealed by Chris Rodda's meticulous analysis, zealotry more than fact shapes his work, which is riddled with shoddy scholarship and downright dishonesty. See Chris Rodda, Liars for Jesus: The Religious Right's Alternate Version of American History (2006) and http://www.huffingtonpost.com/chris-rodda/glenn-becks-new-bff----da_b_458515.html

Anonymous,  8:41 AM  

You guys just hate God and America.

Smitty 8:42 AM  

In the end, I think it is not fair to gloss over our Christian origins,

I think it's irrelevant.

Our government is supposed to be secular. It doesn't matter if we had 2 Buddhists, 3 Muslims and a collection of crazy fundie Pilgrims; they made a secular government.

but I also don't think it is important to acknowledge other major influences.

Wait...it's NOT fair to skip the Christian contributions, but it IS fair to exclude "other major influences"?

Monk-in-Training 1:32 PM  

@ Steves

The Founders (or at least most of them) believed that our basic fundamental rights came from God

I don't in any way dispute that, but that belief is not mentioned n the Constitution. What is listed in the Constitution and the amendments delineating our rights isn't (in my modest opinion) recognizable from Scripture so much as it is from the French enlightenment. (horrors, France!) Nothing in the Bible tells us how to allocate Senatorial elections, etc.

There are various statements about how the poor had claim on the property of richer people, and how the rich should pay more to the State. and collecting interest is sinful, but that isn't what I think is being examined here.

@ Smitty

are there concrete (or at least interpretive) examples where the separation of church and state is discouraged or actually listed as a big biblical no-no?

I think the first issue is understanding that our view of Nation/State and Church isn't the view of early near eastern peoples. There simply isn't the same mind set. Church and State are so intermixed as to be inseparable.

Hebrews adjudicated issues such as "he stole my goat" and "I own this land, not him" right along with "how much of your arms do you have to wash to be sure your 'hands' are ritually clean", and "how far can you walk on Sabbath and not 'work'" . There wasn't an understanding that the first examples were 'secular' and the second was 'religious'.

As time progressed and the Roman Empire expanded you can see the people in the Apostolic era both resisting and following the laws of the land, depending on what they believed God had told them. Even in those days, separating the two spheres of influence just wasn't really an idea they explored, that I am aware of.

And of course, I could be wrong. ;) These are only my own musings.

Does that help even a little?

@ Anonymous

How is hating or loving God in any way involved with loving or hating a particular nation? America being in question here.

Bob 1:45 PM  

"Nothing in the Bible tells us how to allocate Senatorial elections, etc."

In fact the way we allocate our representation is modeled more after non-Christian peoples. Most notably the Iroquois Confederacym who had a bi-cameral governing body. This structure had representation based on membership in one body and a second House with representatives from each of the five nations.

(My word verfication is "knowing")

Bob 2:27 PM  

Any thoughts on the Treaty of Tripoli, which stated:

"Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen,—and as the said States never entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries."?

http://en.wikipedia.org/wiki/Treaty_of_Tripoli

Smitty 2:39 PM  

Thanks Monk. That was a nice analysis.

steves 9:06 PM  

but I also don't think it is important to acknowledge other major influences.

Wait...it's NOT fair to skip the Christian contributions, but it IS fair to exclude "other major influences"?


Oops, part 2. Ignore the word 'don't'. Maybe I shouldn't post anything more on this topic if I can't even proofread.

I think it's irrelevant.

It is relevant from a historical perspective, but of a much more limited relevance if we are interpreting the Establishment Clause.

Personally, I don't mind the status quo we have. I prefer that there not be a close relationship between the gov't and religion, as it is better for both entities.

If I had to draw a line and formulate a bright line rule, I would have a tough time doing that. I think that cases that prevent Creationism (or ID) from being taught in schools are correct, as are other cases that would prevent any kind of religious indoctrination in public schools. I don't think minor public displays (such as nativity scenes) are an Establishment of a state religion, but I also don't feel all that strongly that they need to be displayed.

How is hating or loving God in any way involved with loving or hating a particular nation? America being in question here.

I agree 100%. I don't think that nationalism is compatible with what the Bible says.

What is listed in the Constitution and the amendments delineating our rights isn't (in my modest opinion) recognizable from Scripture so much as it is from the French enlightenment. (horrors, France!)

Not to dis the French, but much of the Enlightenment happened at the same time as the founding of our nation and was influenced by what was going on here. The writings of Alexis de Tocqueville were very heavily influenced by his observations of America. I also think the English should get some credit, as Hobbes wrote some stuff that was pretty important.

Any thoughts on the Treaty of Tripoli

I think they mostly didn't want to piss off the Muslim rulers, but like Smitty said, it probably isn't all that relevant. We have a secular government.

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