The Establishment of Religion Clause

The Establishment of Religion Clause

I don't normally respond to the childish insults from 43rd State Blues. Along with being strictly petty, junior high insults, the language is usually quite vulgar. If this bunch, which calls its blog "Democracy for Idaho" is indicative of the Democratic Party here, I can see why Republicans dominate this state's politics.

Here is an actual substantive issue that they raise--and it provides a useful opportunity to discuss an important question. They have decided to accuse Bryan Fischer of violating the establishment of religion clause for speaking in a public school classroom at the request of a teacher:

I'd like to know where I can bring up charges of violating the Separation of Church and State against Bryan Fischer:

I had the privilege last week to spend two hours with accelerated biology students at a Treasure Valley public school, invited by an open-minded science teacher. I reviewed with these students the evidence for intelligent design and against the theory of evolution.
Along the way, I pointed out the dramatic differences that occur in society if we believe that man is merely an advanced ape rather than someone created in the image of God. Surely Planned Parenthood’s racism is one of the logical consequences of the embrace of evolution by our cultural elites.

I would also like for someone to point me to the school or the teacher him/herself that violated the trust of the public.

They are excitedly talking about suing Fischer for this--which just shows how little they really understand about this matter.

1. Fischer is not a governmental official. Even accepting their claim that Fischer presenting an alternative point of view is improper, Fischer, being a private citizen, did not violate the establishment clause. At most, someone who asked him to speak might have violated the establishment clause, but Fischer clearly did not.

Even aside from the legal question, it says quite a bit about where liberals stand that they object to students hearing more than one side of an issue. If public schools taught a conservative perspective in government class, and a teacher decided to have a liberal come in and challenge those assumptions, 43rd State Blues would be praising the teacher for giving the students the chance to hear a diverse range of ideas. If you really think that hearing Intelligent Design espoused for a couple of hours is going to damage the ability of these students to make up their own minds, it really shows a contempt for the students--and a lack of confidence that the orthodox teachings of evolution are clearly right.

2. The basis for their claim that having Fischer speak in a science class is a violation of the establishment clause is Kitzmiller v. Dover Area School District, a suit in which the school board had directed that biology teachers include discussion of Intelligent Design. The school board, as a governmental body, directed that this discussion take place. Unless 43rd State Blues can find some evidence that Fischer was speaking to that science class because some school board or other governmental agency directed it, there is no establishment violation.

3. The idea that presenting a religious point of view in a public classroom is an establishment clause violation is a position that would have been unimaginable to the Framers. As I point out here, religion and government were joined at the hip throughout the Revolutionary period. Presidents Thomas Jefferson (among the most freethinking of the Framers) and James Madison (the primary draftsman of the Bill of Rights, including the establishment clause) both regularly attended church services that were held in the Hall of Representatives in Washington, D.C. Government buildings were regularly used for church services during their terms. Congress set aside section 29 of every township in the Ohio Territory for the support of whatever church the majority of the township selected.

The establishment clause had a narrow purpose: to prohibit any particular religious institution or denomination from receiving preferential (or dispreferential) treatment from Congress:

Congress shall make no law respecting an establishment of religion,

The word "respecting" doesn't mean in the positive sense of "Give me some respect" but in the sense of "having anything to do with." Congress could make laws that generally supported religion (as they did throughout the Revolutionary, Constitutional, and early Republic periods) as long as no particular "establishment of religion" enjoyed any special benefits. As Supreme Court Justice and Harvard law professor Joseph Story pointed out:

The real object of the amendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cuts off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. [Joseph Story, Commentaries on the Constitution of the United States, 5th ed. (Boston: Hilliard, Gray & Co., 1833), 701]

They were assuming Christianity, since for practical purposes, this was an entirely Christian nation. There were small numbers of Jews (who could not hold public office in many states), and a few Muslims among the enslaved black population, but this was a Christian nation. Some of the Framers held what were fairly liberal ideas about religion at the time (e.g., Ben Franklin, Thomas Paine, Thomas Jefferson, John Adams in his later years), although most still thought of themselves as Christians. Consider this 1790 letter from Ben Franklin to Ezra Stiles, shortly before Franklin's death:

I believe in one God, creator of the universe. That he governs it by his Providence. That he ought to be worshiped. That the most acceptable service we render to him is doing good to his other children. That the soul of man is immortal, and will be treated with justice in another life respecting its conduct in this. These I take to be the fundamental principles of all sound religion, and I regard them as you do in whatever sect I meet with them.
As to Jesus of Nazareth, my opinion of whom you particularly desire, I think the system of morals, and his religion, as he left them to us, the best the world ever saw, or is likely to see; but I apprehend it has received various corrupting changes, and I have, with most of the present dissenters in England some doubts as to his divinity; tho' it is a question I do not dogmatize upon, having never studied it, and think it needless to busy myself with it now, when I expect soon an opportunity of knowing the truth with less trouble. I see no harm, however, in its being believed, if that belief has the good consequence, as it probably has, of making his doctrines more respected and better observed; especially as I do not perceive that the Supreme takes it amiss, by distinguishing the unbelievers in his government of the world with any particular marks of his displeasure.

But even freethinkers like Franklin tended to be pretty reticent about their beliefs, because they knew that they were out of the mainstream--and it would not be good for their reputations if they revealed this:

P.S.... I confide that you will not expose me to criticism and censure by publishing any part of this communication to you. I have ever let others enjoy their religious sentiments, without reflecting on them for those that appeared to me unsupportable and even absurd. All sects here, and we have a great variety, have experienced my good will in assisting them with subscriptions for building their new places of worship; and as I have never opposed any of their doctrines, I hope to go out of the world in peace with them all.

The Supreme Court has made a pretty serious botch of the establishment clause, partly because they were looking for a way to remove religion from the public square, and partly because at one point they were trying to stomp out the Mormon practice of polygamy without admitting that the problem with it was that it was anti-Christian.

I expect that 43rd State Blues will again return to calling me an ignorant yahoo. For those in doubt, compare the quality of the material here and there.