Separation of Church and State – Answering Critics

[Merrill]

Secular law bans human sacrifice, too, even if the victim agrees. That's an extreme case of the free-exercise clause being abridged, of course. The question always comes down to "am I free to do what I want, even if it might hurt someone else?"

And it's a balancing act in cases like this.

We see that when the First Amendment was crafted, the framers clearly had in mind Christianity, and to a lesser degree, Judaism and Islam. We don't need to go into reductio ad absurdum to make the case that because human sacrifice might be a part of some religion, and killing people is immoral, we should declare the free-exercise clause invalid

in many cases, we need to consider framer's intent as best we can

 

[The Barbarian]

We see that when the First Amendment was crafted, the framers clearly had in mind Christianity, and to a lesser degree, Judaism and Islam. We don't need to go into reductio ad absurdum to make the case that because human sacrifice might be a part of some religion, and killing people is immoral, we should declare the free-exercise clause invalid

In fact, the Founders specifically stated that religious freedom included all, including atheists and "pagans." It's why it's written to specifically allow free exercise of religion for all without exception. Courts have repeatedly upheld the right of all religions to free exercise, while banning any and all religions from government establishment.

The point is that my right to swing my arm ends where your nose begins. It's not a difficult idea; it's just hard to balance sometimes.

 

[Merrill]

In fact, the Founders specifically stated that religious freedom included all, including atheists and "pagans." It's why it's written to specifically allow free exercise of religion for all without exception. Courts have repeatedly upheld the right of all religions to free exercise, while banning any and all religions from government establishment.

The point is that my right to swing my arm ends where your nose begins. It's not a difficult idea; it's just hard to balance sometimes.

In the example of states shuttering churches, there was no act of violence by members of these churches against the public. Churches were not engaged in some criminal conspiracy against the state. No one was punching you in the nose.

In the example of the Catholic Church, its parishioners and votaries firmly maintain that one must have access to the sacraments (Communion, Confession, Baptism, Last Rites, etc.) --these things cannot be done over Zoom calls, and the physical presence of worshippers is necessary for Mass, etc. By shuttering these churches and denying Catholics the ability to worship and gain access to these sacraments, the state was demonstrably, and clearly, violating the free-exercise clause of the First Amendment

and in the case of laws applying equally and generally to everyone, that wasn't even the case, as casinos and pot dispensaries were permitted to stay open while churches were shuttered

 

[Dale]

We see that when the First Amendment was crafted, the framers clearly had in mind Christianity, and to a lesser degree, Judaism and Islam. We don't need to go into reductio ad absurdum to make the case that because human sacrifice might be a part of some religion, and killing people is immoral, we should declare the free-exercise clause invalid

in many cases, we need to consider framer's intent as best we can

Merrill: “We see that when the First Amendment was crafted, the framers clearly had in mind Christianity, and to a lesser degree, Judaism and Islam.”

Benjamin Franklin spent a considerable amount of time with the Iroquois Indians. The Founding Fathers were well aware that American Indians were practicing pagans, and had no thought of suppressing their religion.


Merrill: “in many cases, we need to consider framer's intent as best we can ”

Did you read the OP? James Madison wrote the First Amendment, and we don’t have to guess at his intentions.

 

[The Barbarian]

In the example of states shuttering churches, there was no act of violence by members of these churches against the public.

However, the state had a reasonable interest in preventing the spread of the virus, and large meetings were doing just that. Sometimes, what you do, adversely affects others.

Churches were not engaged in some criminal conspiracy against the state.

But large meeting were killing people. Which is a bad thing, I think.

No one was punching you in the nose.

But lots of people were giving other people COVID-19, and people died thereby.

As I said, it's a balance between right, not a black and white divide.

 

[The Barbarian]

In the example of the Catholic Church, its parishioners and votaries firmly maintain that one must have access to the sacraments (Communion, Confession, Baptism, Last Rites, etc.) --these things cannot be done over Zoom calls

But they can (and are) done privately when necessary, with one person and a priest.

By shuttering these churches and denying Catholics the ability to worship and gain access to these sacraments,

But that wasn't happening.

and in the case of laws applying equally and generally to everyone, that wasn't even the case, as casinos and pot dispensaries were permitted to stay open while churches were shuttered

Which would be a failure to properly balance rights of the individual and the public.

 

[Dale]

On a related-note, the biggest issue facing the establishment and free-exercise clauses of the First Amendment, are situations where the government (either local, state, or federal) can infringe upon religious liberty in certain circumstances

I will argue that precedent set forth in previous decades essentially nullifies the free-exercise clause --which is a big problem

During the pandemic, states reacted with various laws, orders, and statutes designed to limit religious gatherings, or close all churches. Maryland explicitly ordered churches to close, while states like Texas made a distinction between "essential" and "non-essential" services, and ultimately declared churches essential, thus giving them some ability to operate. Nevertheless, churches nationwide were shuttered in early 2020

The justification for these actions were based on some SCOTUS rulings in previous decades, and specifically the statement by the court "Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."

this idea of a neutral law that applies evenly can supersede the free-exercise clause is highly problematic

another avenue state authorities took was declaring emergency action in order to free themselves from Constitutional requirements

both of these justifications are legally wrong, based on:

1. The supremacy clause of the Constitution (Article VI). A state cannot arbitrarily pass a law that infringes om the Constitution, Bill of Rights, etc.

2. There is no concept of neutrality in the Bill of Rights. A state cannot pass a law that removes the right to trial for all citizens of Maryland, based on some frivolous foundation, and declare that it is a valid law because it applies to everyone --that is complete nonsense.

3. A state emergency is not a national emergency --and even though a national emergency was declared during the early days of the pandemic, the president did not suspend the Constitution and assume emergency powers. A state cannot declare an emergency and circumvent the Constitution (see #1)

Either the First Amendment means what it says, or it doesn't. If a virus with a 99% survival rate can lead to actions by states that circumvent the free-exercise clause, states effectively shutter houses of worship for virtually any reason, and at any time

Merrill,

I’m not aware of the situation in Maryland. I’m better informed about Florida, where I live. You are making a big deal out of restrictions on churches, but religious institutions were not specifically targeted.

The State of Florida Issues Updates on COVID-19​

March 17, 2020


<< Information on Restaurants, Bars, Nightclubs and Beaches

• Governor Ron DeSantis issued an Executive Order that will reduce density and crowds in restaurants, bars, nightclubs and beaches to mitigate the spread of Coronavirus (COVID-19).
• Bars and Nightclubs
  • Under the direction of Governor DeSantis, all bars and nightclubs throughout Florida will close for the next 30 days. Information is available on the website of Florida’s Department of Business & Professional Management (DBPR).
• Beaches
  • The Governor is directing parties accessing public beaches in the state of Florida to follow the Centers for Disease Control and Prevention (CDC) guidance by limiting their gatherings to no more than 10 persons.
• Restaurants
  • Restaurants across the state of Florida will now be required to limit customer entry to 50 percent of capacity. Seating must be staggered and limited to ensure seated parties are separated by a distance of at least six feet, in accordance with CDC guidelines. Restaurants are encouraged to remain open and expand take-out and delivery services. Information is available on the website for DBPR.

>>

Source
The State of Florida Issues Updates on COVID-19 | Florida Department of Health

Also:

LIST: Beaches closed throughout Florida due to coronavirus pandemic​

by WEAR staff
Thu, March 19th 2020 at 10:04 AM
Updated Fri, March 20th 2020 at 3:17 PM


[The closures on this list were voted by local governments, not imposed by the state.]

Source
LIST: Beaches closed throughout Florida due to coronavirus pandemic

 

[lifepsyop]

In fact, the Founders specifically stated that religious freedom included all, including atheists and "pagans." It's why it's written to specifically allow free exercise of religion for all without exception. Courts have repeatedly upheld the right of all religions to free exercise, while banning any and all religions from government establishment.

The point is that my right to swing my arm ends where your nose begins. It's not a difficult idea; it's just hard to balance sometimes.

This is the problem with Liberalism. It atomizes man within the mythological origin story of the state of nature, and from that point can see no Good apart from prevention of transgression of individual property. It throws men and women into a lawless revolution against reality itself.

The apostle Paul had some things to say about liberalism in his first letter to the gentiles.

 

[The Barbarian]

The point is that my right to swing my arm ends where your nose begins. It's not a difficult idea; it's just hard to balance sometimes.

This is the problem with Liberalism.

Classic liberalism, which is now mostly known as libertarianism.

The harm principle says people should be free to act however they wish unless their actions cause harm to somebody else.​

The principle is a central tenet of the political philosophy known as liberalism and was first proposed by English philosopher John Stuart Mill.

The harm principle is not designed to guide the actions of individuals but to restrict the scope of criminal law and government restrictions of personal liberty.

For Mill – and the many politicians, philosophers and legal theorists who have agreed with him – social disapproval or dislike (“mere offence”) for a person’s actions isn’t enough to justify intervention by government unless they actually harm or pose a significant threat to someone.

The phrase “Your freedom to swing your fist ends where my nose begins” captures the general sentiment of the principle, which is why it’s usually linked to the idea of “negative rights”. These are demands someone not do something to you. For example, we have a negative right to not be assaulted.

What is The Harm Principle? Ethics Explainer by The Ethics Centre

The harm principle says people should be free to act however they wish unless their actions cause harm to somebody else.

ethics.org.au

Those who set the state as the ultimate arbiter of rights, don't buy this idea.

It atomizes man within the mythological origin story of the state of nature, and from that point can see no Good apart from prevention of transgression of individual property.

No. In fact, the principle recognizes that it is not the function of law to make us "good." The law is, as the founders insisted, was to keep people from harming other people.

It throws men and women into a lawless revolution against reality itself.

If you actually think so, you don't have a very good relationship with reality. How does giving people the freedom to do as they see fit, only limited to keep them from harming others, "throw men and women into a lawless revolution against reality itself?"

 

[lifepsyop]

No. In fact, the principle recognizes that it is not the function of law to make us "good." The law is, as the founders insisted, was to keep people from harming other people.

As the apostles of Jesus pointed out, legitimate rule of law is meant to be a terror to evil. Classical liberalism does not recognize good or evil, beyond the rationalistic billiard ball style morality of individual property transgressions.

If you actually think so, you don't have a very good relationship with reality. How does giving people the freedom to do as they see fit, only limited to keep them from harming others, "throw men and women into a lawless revolution against reality itself?"

Seems as if to ask the question is to answer it.

 

[Merrill]

Merrill: “We see that when the First Amendment was crafted, the framers clearly had in mind Christianity, and to a lesser degree, Judaism and Islam.”

Benjamin Franklin spent a considerable amount of time with the Iroquois Indians. The Founding Fathers were well aware that American Indians were practicing pagans, and had no thought of suppressing their religion.


Merrill: “in many cases, we need to consider framer's intent as best we can ”

Did you read the OP? James Madison wrote the First Amendment, and we don’t have to guess at his intentions.

Franklin and Madison did not intend for the First Amendment to protect Satan-worshippers practicing human-sacrifice --that was my point

we can argue all day about the Deist tendencies, secular impulses, etc. of the framers --but that is going down another rabbit-hole and is off topic. The First Amendment's free-exercise clause is clear

 

[Merrill]

However, the state had a reasonable interest in preventing the spread of the virus, and large meetings were doing just that. Sometimes, what you do, adversely affects others.

But large meeting were killing people. Which is a bad thing, I think.

But lots of people were giving other people COVID-19, and people died thereby.

As I said, it's a balance between right, not a black and white divide.

The state's compelling interest does not override the Constitution (supremacy clause, article VI)

There have been many pandemics, and even malaria outbreaks, in the US --we did not order all places of worship shuttered in response

likewise, as I pointed out above, places like casinos and pot dispensaries were kept open--so this narrative about "protecting people from each other" so "lots of people don't die" is just a gigantic lie

 

[Merrill]

Merrill,

I’m not aware of the situation in Maryland. I’m better informed about Florida, where I live. You are making a big deal out of restrictions on churches, but religious institutions were not specifically targeted.

The State of Florida Issues Updates on COVID-19​

March 17, 2020


<< Information on Restaurants, Bars, Nightclubs and Beaches

• Governor Ron DeSantis issued an Executive Order that will reduce density and crowds in restaurants, bars, nightclubs and beaches to mitigate the spread of Coronavirus (COVID-19).
• Bars and Nightclubs
  • Under the direction of Governor DeSantis, all bars and nightclubs throughout Florida will close for the next 30 days. Information is available on the website of Florida’s Department of Business & Professional Management (DBPR).
• Beaches
  • The Governor is directing parties accessing public beaches in the state of Florida to follow the Centers for Disease Control and Prevention (CDC) guidance by limiting their gatherings to no more than 10 persons.
• Restaurants
  • Restaurants across the state of Florida will now be required to limit customer entry to 50 percent of capacity. Seating must be staggered and limited to ensure seated parties are separated by a distance of at least six feet, in accordance with CDC guidelines. Restaurants are encouraged to remain open and expand take-out and delivery services. Information is available on the website for DBPR.

>>

Source
The State of Florida Issues Updates on COVID-19 | Florida Department of Health

Also:

LIST: Beaches closed throughout Florida due to coronavirus pandemic​

by WEAR staff
Thu, March 19th 2020 at 10:04 AM
Updated Fri, March 20th 2020 at 3:17 PM


[The closures on this list were voted by local governments, not imposed by the state.]

Source
LIST: Beaches closed throughout Florida due to coronavirus pandemic

"You are making a big deal out of restrictions on churches, but religious institutions were not specifically targeted."

Please read my post above about this idea that if a law does not specifically target religious institutions, and is generally enforced, it is permissible, even if it violates the Constitution. That idea largely comes from a 1990 SCOTUS ruling (Employment division vs. Smith), which I think is a bad ruling, and has been denounced by many (Congress even took action to remedy it)

It is one of the few instances where I strongly disagreed with Scalia

but even in that instance, the issue was the possession of peyote (illegal drug) by practitioners of an native-American religion. One aspect of the case was that this peyote wasn't even being used in ritual--the individuals were carrying it around. That is 100% different than a situation where a state authority orders all places of worship closed on the pretense that it will "protect the public" --I'm sure Scalia did not envision this ruling being abused in order to justify such action.

What I am trying to assert here, is that if the First Amendment can be subverted and violated with impunity by state or federal government, under the pretense that "compelling interest" of state/federal authorities takes precedence, we basically have no rights

The exact reason the Bill of Rights was crafted was to prevent government from asserting their "compelling interest" against the fundamental rights of American citizens

The pandemic restrictions (lockdowns, vaccine passports, shuttered schools, etc.) was a watershed moment for the country, in which many citizens welcomed a wholesale violation of their rights, and SCOTUS refused to hear cases arising from the states to reign in these violations.

 

[lifepsyop]

What I am trying to assert here, is that if the First Amendment can be subverted and violated with impunity by state or federal government, under the pretense that "compelling interest" of state/federal authorities takes precedence, we basically have no rights

The exact reason the Bill of Rights was crafted was to prevent government from asserting their "compelling interest" against the fundamental rights of American citizens

The pandemic restrictions (lockdowns, vaccine passports, shuttered schools, etc.) was a watershed moment for the country, in which many citizens welcomed a wholesale violation of their rights, and SCOTUS refused to hear cases arising from the states to reign in these violations.

This is an example of the "balancing act" that The Barbarian is defending. It's known as the state of exception, where true holders of power of the regime simply overturn all rule of law and order, usually in the interests of expanding power. For example, most of the things Abraham Lincoln did.. who is now considered one of, if not, the greatest U.S. President in history.

Also, it is commonly known that the Civil Rights movement in America actively overturned basic tenets of freedom of association and speech. This is in keeping with the liberal tradition of permanent revolution against any social structures that would hinder the spread of liberal democracy and the free market.

This is the Open Society managerial rules that have ruled America since at least the end of WW2. (Any form of "closed society", e.g. ethnic/heritage European or Christian community, is just a breeding ground for fascism, obviously....) It's why it will never matter how large of a majority wants mass migration halted and borders closed. Just like it will never matter how big of a majority wants to stop funding the war in Ukraine. Those are regime goals.

 

[Merrill]

This is an example of the "balancing act" that The Barbarian is defending. It's known as the state of exception, where true holders of power of the regime simply overturn all rule of law and order, usually in the interests of expanding power. For example, most of the things Abraham Lincoln did.. who is now considered one of, if not, the greatest U.S. President in history.

Also, it is commonly known that the Civil Rights movement in America actively overturned basic tenets of freedom of association and speech. This is in keeping with the liberal tradition of permanent revolution against any social structures that would hinder the spread of liberal democracy and the free market.

This is the Open Society managerial rules that have ruled America since at least the end of WW2. (Any form of "closed society", e.g. ethnic/heritage European or Christian community, is just a breeding ground for fascism, obviously....) It's why it will never matter how large of a majority wants mass migration halted and borders closed. Just like it will never matter how big of a majority wants to stop funding the war in Ukraine. Those are regime goals.

Agreed --the regime claims that it must determine how to "balance" rights against government interests

but the First Amendment really doesn't permit such reasoning, all practicality aside. The moment we accept that government officials get to arbitrarily decide if a section of the Bill of Rights applies to a given situation, we have given away our rights.

A good example was from last year, when a group of Neo-Nazis hung a banner on an overpass (public property) in New England that said something like "Keep New England White", and then packed it up and left. The group was charged with not only trespassing, but a felony hate-crime based on the content of the message. This was later overturned by the courts, because it was a massive First Amendment violation

the government may have had an interest in keeping such messages away from the public, but the First Amendment does not recognize this "government interest". It says what it says, and it exists explicitly to curtail government.

We have gone from a country where freedom to has been replace by freedom from. Atheists, leftists, etc. do not want to be exposed to ideas and images they disagree with, and they do not recognize free speech, or the free-exercise clause of the First Amendment. The establishment clause is interpreted to mean that the general public should be shielded from religious imagery, that churches should be treated like any other "commercial" operation, and that religious speech is a kind of violence: the idea that if a person prays in public, it is equivalent to "punching the atheist in the nose" --and such action is a violation of the atheist's rights

 

[lifepsyop]

We have gone from a country where freedom to has been replace by freedom from. Atheists, leftists, etc. do not want to be exposed to ideas and images they disagree with, and they do not recognize free speech, or the free-exercise clause of the First Amendment. The establishment clause is interpreted to mean that the general public should be shielded from religious imagery, that churches should be treated like any other "commercial" operation, and that religious speech is a kind of violence: the idea that if a person prays in public, it is equivalent to "punching the atheist in the nose" --and such action is a violation of the atheist's rights

to be fair, modern Christians have basically gone along with it. Even conservative evangelicals consider the worldwide hegemony of post-WW2 Anglo-American Liberalism to be a great thing, divine providence, and the inauguration of a sacred Free World.

 

[Merrill]

to be fair, modern Christians have basically gone along with it. Even conservative evangelicals consider the worldwide hegemony of post-WW2 Anglo-American Liberalism to be a great thing, divine providence, and the inauguration of a sacred Free World.

100% correct, and you point out the exact problem

"Modern Christianity" as it is found in the US has the problems of

1. Deference to secular authority
2. Christian Zionism, and other movements which put the needs and desires of foreign entities and nations above those of the country in which we live, and the rightfully-interpreted tenets of the faith
3. Encroaching globalism and secular movements into the faith

Some Christians, especially those on the political left, basically have the idea of "I will worship as long as the government gives me permission, and others don't object" --which is entirely at odds with the teachings of Christ

 

[The Barbarian]

As the apostles of Jesus pointed out, legitimate rule of law is meant to be a terror to evil.

Seems like that's what's going on. It's just that evil people would like to just use it to enforce their religion and ideas. The founders decided that God should punish sinners and the state should punish criminals.

Sounds like a plan to me. But not to people who want to do for God what they know God would do, if He had all the facts.

 

[The Barbarian]

Some Christians, especially those on the political left, basically have the idea of "I will worship as long as the government gives me permission, and others don't object"

Haven't seen any of those. Sounds like imagination in overdrive, to me. The courts have always held that one can worship as one pleases, so long as one doesn't impose on the rights of others.

But imposing on the rights of others is the whole point of making government a terror to "evil." (evil being defined by the people who want to control other people)

America is the wrong country for that kind of thinking.

 

[The Barbarian]

Seems as if to ask the question is to answer it.

How would preventing kids from bullying other kids who might be gay or transgender or whatever, force you and me into any kind of "lawless revolution?"

Jesus saved His wrath for those who oppressed the least of us.

Matthew 11:19 The Son of man came eating and drinking, and they say, Behold a man gluttonous, and a winebibber, a friend of publicans and sinners. But wisdom is justified of her children.