Religion and State

IntroductionIt is often forgotten that religious liberty was the central value and purpose of the Religion Clauses. The "separation of church and state" is a phrase that does not appear in the First Amendment or in the debates surrounding its adoption. The point of the Religion Clauses is clearly to protect religious liberty, to ensure that government does not interfere with a person's chosen religious belief. The problem here is quite simple. Strict neutrality or separationism cannot account for the purpose of protecting freedom of choice and religious liberty, so I argue that there are in fact occasions in which the Free Exercise Clause requires that religious exercise be given precedence over civil law. Let me make clear, however, that I am not saying all claims for free exercise are valid, but rather, that there are some valid claims for exemption from civil law.So, while I agree the government cannot establish a national religion, what I argue is that we cannot reject the possibility that religion may be true. Think about that: religious claims are possibly true. And if true, religious claims are obviously of a higher order than anything in secular institutions. Without doubt, if religious claims are true, they must be prior to and of greater dignity than the claims of the state; if there is a God, His authority necessarily transcends the authority of nations. Some citizens, otherwise good and law-abiding citizens, will and do view religious claims as higher authority than civil law. That is a descriptive fact about reality. So then, it seems preferable to accommodate them rather than to provoke disobedience. The idea behind accommodationism is simply the pragmatic importance of preserving peace and order. Intent of First AmendmentHistorical accommodations of religion in the years leading up to the framing of the First Amendment were frequent and well known, and no one took the position that they constituted an establishment of religion. The Continental Congress, for example, exempted members of the peace churches from military conscription, and Madison even proposed this policy be enshrined in the Bill of Rights. [1]Furthermore, the Virginia Declaration of Rights, which was the principal precursor to the First Amendment, begins: "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." Madison comments, "and it is the right of every man to exercise it as these may dictate." [2] It is clear, then, that accommodation is perfectly consistent with the intent of the Religion Clauses. Some problems with strict separationism 1) Requiring the legislature to have a plausible secular purpose for every law or policy would require the courts to second-guess the legislature's reasoning for all legislation. Judges would be left as supreme arbiters of controversial beliefs, determining what is and is not religious reasoning and what is and is not secular reasoning. Allowing religious reasoning, which in and of itself can be just as reasonable as secular reasoning, solves this problem. 2) Prohibiting the legal enforcement of religious morality privileges secular belief relative to religious faith. Moral judgments that stem from religious faith, and that cannot stand independent of religious faith, are nonetheless moral judgments, and prohibiting such moral judgments from entering government policies simply favors an ideology of secular rationality (based on science) that is no more objective than religious faith when it comes to morality. It makes sense, then, that government be allowed to base policies on purely religiously based moral judgment, even if hose judgments cannot be validated by secular reasoning.3) Excluding religious values from policy consideration completely excludes the basic values of an overwhelming number of Americans. A recent survey shows that over 90% of Americans believe in God and think the Judeo-Christian tradition offers a valid morality for personal and public life. [3] By opposing secularism to the overwhelming majority, the Court in effect institutes its own religion, the religion of secularism, and at that, it is not even the religion of the majority.Conclusion The intent of the First Amendment was to protect religious liberty. Hence, prohibiting government from adopting religiously based policies marginalizes and discriminates against the free exercise of religion. This is the problem with strict neutrality or strict separationism: rather than protect religious liberty, it effectively enshrines secularism as the national faith, and relentlessly excludes all religious reasoning and religious grounds for morality. Finally, we see that religion, for the overwhelming majority of Americans, provides the deeper moral values that are meant to inform public policy. We conclude, then, that religious reasoning has a place (not always, but sometimes) in the public square, and that religiously based legislation is allowable as a way to enforce religious morality through law. We also conclude that free exercise makes room for exemption from civil law, in a case by case basis, for the sake of protecting religious liberty. [1]http://en.wikipedia.org...[2]http://press-pubs.uchicago.edu...[3]http://thenewamerican.com...;