We live amongst predators who find it profitable to be offended by the beliefs of others. Here is what the 1st Amendment (from here) says.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
When the Founders wrote this law, what were they concerned about? The People looked around, and they saw the possibility the Federal Government might impose a state religion upon the new nation. Because England and some of the colonies had state sponsored churches, they feared being forced to tithe to a church not of their choice. They also did not want to be pressured to attend a church not of their choice.
On the other hand, the People had no desire to separate government from religious practice. Even Thomas Jefferson (famed for that widely misunderstood phrase, “a wall of separation between Church & State”) approved the use of federal funds to Christianize the Indians (see here).
Now, however, we have lawyers paid with taxpayer funds to find objectionable religious objects on government property (see here). In addition, stirring up useless controversy generates free publicity.
This video provides an example.
Here is a link to a group fighting the easily offended. Until we can get judges willing to accept the original meaning of the Constitution, we have to fight fire with fire. This mess is profitable for lawyers, but it is a waste of time for everyone else.
In addition to Thomas Jefferson, James Madison, who had a central role in drafting the Constitution and the First Amendment, made plain that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (1817). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that old habits die hard and that tendencies of citizens and politicians could and sometimes did entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he questioned whether these were “consistent with the Constitution, and with the pure principle of religious freedom.” His response: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.” What then, Madison further inquired, should be made of these various actions already taken in the nation’s then “short history” inconsistent with the Constitution? Ever practical, he answered not with a demand these actions be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].”
Apart from Madison’s commentary, the legislative history of the First Amendment belies the narrow scope you would give it. The first Congress debated and rejected just such a narrow provision (actually several) and ultimately chose the more broadly phrased prohibition now found in the Amendment. As reflected in his Detached Memoranda, Madison certainly did not read the Amendment as you suggest. In keeping with the Amendment’s terms, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude Congress from enacting a statute formally establishing a national church, the intent of the Amendment could easily be circumvented by Congress and/or the Executive doing all sorts of things to promote this or that religion–stopping just short of formally establishing a church.
The First Amendment thus embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion.
Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to transform our secular government into some form of religion-government partnership should be resisted by every patriot.
A word should be added about the common canard that this is all about people easily offended. We’re not talking about the freedom of individuals to say or do something others find offensive. We’re talking about the government weighing in to promote religion. Under our Constitution, our government has no business doing that–regardless of whether anyone is offended. While the First Amendment thus constrains government from promoting religion without regard to whether anyone is offended, a court may address the issue only in a suit by someone with “standing” (sufficient personal stake in a matter) to bring suit; in order to show such standing, a litigant may allege he is offended or otherwise harmed by the government’s failure to follow the law; the question whether someone has standing to sue is entirely separate from the question whether the government has violated the Constitution.
I haven’t listened to the video, but my immediate thought upon reading your title, Tom, was something a lawyer wrote: we don’t have the right not to be offended.
kgotthardt – A worthwhile observation.
Doug Indeap – What a curious lack of doubt! How do you square what our supreme jurists have done with the commerce clause with what they have done with the 1st Amendment?
I suggest you consider the difference between the government’s promotion of religion and the government allowing the People to practice their religion in an ever expanding — and consuming — public square.
Did the Founders intend that we only practice our religion behind the closed doors of our homes?
Every state had an official religion or religious tests for office – except for Virginia – when the Constitution was ratified (Bill of Rights followed). The Founders had no problem with states promoting religions of their choice as official state-churches. The bright idea was to not have the Federal level of government pick a favored denomination among the Christian churches.
If you think allowing a cross to be built upon public land = the establishment of a church, then you are ignorant of what an official church-state is and/or clueless on what church means.
SCOTUS, POTUS and Congress have said, “America is a Christian Country.” It’s an adjective, not a noun. Allowing the Christian majority to rule, is called majority rule. Thus, establishing the U.S. and Virginia official holidays – called “Christmas” – doesn’t establish a religion, but reflects the majority will. It forces religion on no person – including secular humanist morons.
All good comments. Don’t agree with the first one, of course, but I must admit the author did some research.
Please stayed tuned. Since we all find the subject interesting, I decided to do another post. It will appear in the morning.
Old Fashion Liberal,
I agree with you that it is critical to distinguish the “public square” from “government.” The principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The “establishment” clause constrains only the government not to promote or otherwise take steps toward establishment of religion. When an individual acts in an official capacity on a government matter (e.g., a public school teacher instructing students in the classroom), he or she should conform to the First Amendment constraints on government. When an individual participates in an official event as an individual rather than as a government agent, he or she presumably has the freedom to express religious views. While figuring out whether someone is acting in an official or private capacity in any given circumstance can be complex, recognizing the distinction is critical.
Mr. Brown,
You are right to note that the founders said nothing of state churches and state religious tests in the Constitution; they only constrained the federal government in that regard. Whether individual founders “had no problem” with state churches as a matter of personal opinion likely varied–as the political trend at the time was to disestablish such churches.
You are right, too, to observe that not every governmental accommodation of the religious views of its citizens, or some portion of them, amounts to “establishment” of religion. Under our Constitution, government is designed and intended to be responsive to the will of the people–up to a point. And putting our finger on that point is the trick.
Doug Indeap – Very funny. Implement socialism, as we have increasingly and stupidly done, and everything becomes the official function of a government official. Then religion has no place in your world. Is that your grand plan? That is what the Founders had in mind, right? And they were all closet Atheists too. Right?
I suggest you look at Tom’s latest post.
http://citizentom.com/2009/07/16/a-different-kind-of-blogging/