Egnor's war on the Establishment Clause

Posted 17 April 2009 by Timothy Sandefur

Michael Egnor's most recent post accuses me of being an "atheist fundamentalist" due to my belief that military chaplains are a violation of the Establishment Clause. Okay--call me what names you like. While I admit that my position is "extreme," whatever that term might mean in this context, it is one I am proud to share with James Madison, the author of the First Amendment, who said,

17 Comments

Glen Davidson · 17 April 2009

I made these comments at Sandefur's earlier post, but on this subject:

So now Egnoramous is over at the DI’s blog blithering and caterwauling (www.evolutionnews.org/2009/04/censorship_in_freespace.html#more) that Sandefur doesn’t support the government’s paying for chaplains–now whining that Sandefur is against what he so recently claimed that Sandefur was for. Of course the huge problem is that Egnor can’t get anything right, and doesn’t really seem to care to do so. He spins anything into an attack on atheists/evolutionists, hence, why should he bother to get his facts straight? What’s surprising about Sandefur opposing the government’s concessions to religion? Many atheists oppose those. I don’t (I don’t happily accept the title “atheist” either, but it’ll do where distinctions are not very fine), yet that seems to put me in the minority among atheists on the web forums. He’s shown, once again, to be the blowhard that he is, but instead of apologizing for being a jackass (once again), he’s merely attacking Sandefur for being consistent (at least according to Egnorant standards), where he was just accusing him of being inconsistent. Egnorant fool seems not able to even make a case there for “censorship in free space,” counting on blank assertion to create such a state by divine fiat. Indeed, perhaps that is the primary impetus behind creationism–they want to be able to produce a state of affairs by means of “speaking, and it is thus.” If that is not the case, they have no case, as they only have rhetoric to “back up their claims.” Give up the belief that lying makes truth, and ID falls apart immediately. Glen D http://tinyurl.com/6mb592

John Kwok · 17 April 2009

What Egnor, his fellow DI mendacious intellectual pornographers and countless others choose to ignore conveniently is the fact that ours was not a country founded on "Christian" principles. In fact, in the very first treaty signed with another country (Ironically, in light of recent incidents, one of the Barbary States) in 1796, the John Adams administration acknowledged that the United States was not a "Christian" country. Both Madison and Adams, like so many of the Founding Fathers, were more Deist than Christian in their religious orientations.

Seward · 17 April 2009

John Kwok,

Two points:

...ours was not a country founded on “Christian” principles.

Yes and no. You are right to point out that many of the "founders" were deists; however, deism was an elite view in the 18th century and most deists didn't it was appropriate for non-elites. So while many were generally skeptical of government involvement in the church affairs, folks like pere Adams were also convinced that religion was one of the most important aspects of maintaining a healthy society. I think the attitudes of the "founders" present a mixed bag in other words.

Second, parts of New England were founded on Christian principles; indeed, there were efforts to institute legal regimes based on the Old Testament, in Massachusetts, and we all know about how Rhode Island was founded. However, and I always find this useful in debate on this issue, within three generations the effort to create such a legal code collapsed because of its unpopularity, and a return to the full common law came about because of that.

John Kwok · 17 April 2009

Seward, I am not going to argue with your excellent analysis:

Seward said: John Kwok, Two points: ...ours was not a country founded on “Christian” principles. Yes and no. You are right to point out that many of the "founders" were deists; however, deism was an elite view in the 18th century and most deists didn't it was appropriate for non-elites. So while many were generally skeptical of government involvement in the church affairs, folks like pere Adams were also convinced that religion was one of the most important aspects of maintaining a healthy society. I think the attitudes of the "founders" present a mixed bag in other words. Second, parts of New England were founded on Christian principles; indeed, there were efforts to institute legal regimes based on the Old Testament, in Massachusetts, and we all know about how Rhode Island was founded. However, and I always find this useful in debate on this issue, within three generations the effort to create such a legal code collapsed because of its unpopularity, and a return to the full common law came about because of that.

However, neither the Declaration of Independence or the US Constitution states that the United States was founded on Christian principles. indeed, many of their principal authors were Deists, who were greatly influenced by both the Scottish and French Enlightenments in their political and religious thinking. And they were certainly members of an "intellectual elite" as we might understand the term today. John

Dan · 17 April 2009

Seward said: Two points: ...ours was not a country founded on “Christian” principles. Yes and no. You are right to point out that many of the "founders" were deists; however, deism was an elite view in the 18th century and most deists didn't it was appropriate for non-elites. So while many were generally skeptical of government involvement in the church affairs, folks like pere Adams were also convinced that religion was one of the most important aspects of maintaining a healthy society. I think the attitudes of the "founders" present a mixed bag in other words.

Let's not chatter about this. Instead, let's hear from the early republic itself: 1796, Treaty of Tripoli, unanimously approved by US Senate, signed by President John Adams (a signer of the Declaration of Independence): "the Government of the United States of America is not, in any sense, founded on the Christian religion"

Second, parts of New England were founded on Christian principles; indeed, there were efforts to institute legal regimes based on the Old Testament, in Massachusetts, and we all know about how Rhode Island was founded. However, and I always find this useful in debate on this issue, within three generations the effort to create such a legal code collapsed because of its unpopularity, and a return to the full common law came about because of that.

It is true that the Massachusetts Bay Colony was founded based on Puritan intolerance. (My coreligionist Mary Dyer was hung in Boston in 1660 for espousing non-Puritan religion beliefs.) But the Massachusetts Bay Colony went out of existence in 1776. The question is not whether the Massachusetts Bay Colony was founded on Christian principles (it was), but whether the United States of America was founded on Christian principles (it was not).

Seward · 17 April 2009

John Kwok,

I think the general expectation at the time amongst many of the founders was that while the federal government would not explicitly support any religion, that civil society would run in a well ordered manner in large part because of religion. I think that one of the reasons why we have so much conflict over what the proper role of religion and government are today is the increasing level of government interference in the lives of the citizenry; that is just going to naturally draw religion more and more into government as religious groups try to protect themselves from government as well as try to become beneficiaries of such.

Dan,

On the Treaty...

Yes, that is a pretty strong argument; but I don't think that it undercuts my point (or even really addresses it) about the general expectation that in civil society there was a general desire amongst the founders that religion be a glue to hold it together.

The question is not whether the Massachusetts Bay Colony was founded on Christian principles (it was), but whether the United States of America was founded on Christian principles (it was not).

And I made a point only slighted related to that question point which actually illustrates a period in the history of what would become the U.S. when a portion of such actually rejected such a founding. What is wrong with that exactly?

Glen Davidson · 17 April 2009

The question of whether this country is, or was, founded as a Xian nation is not so simple. There is, of course, the famous Tripoli treaty. But there is also this, from the Supreme Court:

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. They affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. Comm., 11 Serg. & R. 394, 400, it was decided that, "Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; * * * not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men." And in People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor KENT, the great commentator on American law, speaking as chief justice of the supreme court of New York, said: "The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of those doctrines in not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. * * * The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious [143 U.S. 457, 471] subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right. Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors." And in the famous case of Vidal v. Girard's Ex'rs, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provisions for the creation of a college into which no minister should be permitted to enter, observed: "it is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania." If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find everywhere a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, "In the name of God, amen;" the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation? vftonline.org/TestOath/HolyTrinityOp1-2.htm

Later rulings, of course, move away from this decision. In understanding these things, one has to pay heed to the fact that the First Amendment was originally intended to allow states to do whatever they wanted with respect to religion--and most did support Xianity to varying degrees. Only with the 14th Amendment, and the Incorporation Doctrine, did it take on its more modern interpretation. The Federal gov't, then, was far more neutral than were the states. This particular decision paid a good deal of attention to how the states viewed religion, and to how the people viewed religion. We'd be far more likely to look at how the federal gov't itself viewed religion, which was much more hands-off. What's probably best to say is that this was in many ways founded as a Xian nation, but with a formally secular federal government. Certainly Xianity influenced the forms and mores of government (if far less than many Xian believers say)--which is likewise true of the secular government of Turkey with respect to Islam--yet these were removed from the sphere of influence of religion as much as possible, again, on the federal level. I think that this particular SCOTUS decision would not be very well considered today, mainly because it's taking state (and non-governmental) acknowledgements of religion and attempting to apply them at a federal level. This country was significantly founded as a Xian nation, but not at the federal level, because the founders did not wish to lock the national government into support of religion despite the fact that they often supported it at the state level. The confusion of state vs. national support for religion, as well as confusion about how the First Amendment was applied before and after the Civil War (more precisely, the amendments prompted by that war), are what confuse the debates about whether this is a Christian nation. Many of the founders did think that religion was the source of virtue, and did intend for this to be a Xian nation. Yet they wanted, and produced, a national Constitution that was meant to be, and is, secular. Religion was to be promoted, according to a number of the founders. Just not by the federal government. The mere fact that sometimes it was promoted by the federal government does not change the fact that the intent of the Constitution was for the federal government not to officially promote or to disparage religion. And thanks to the incorporation of the First Amendment as an individual right, this hands-off approach now also applies to the states and beyond. Glen D http://tinyurl.com/6mb592

Seward · 17 April 2009

Glen Davidson,

I guess I'd say I generally agree with your statement. However, while I think it is incredibly foolish for a state to try to create a state religion, etc., and detrimental to a religion also (and of course to atheists like myself as well), I've never been wholely convinced intellectually that the establishment clause should be applied to the states via the incorporation doctrine.

Paul Burnett · 17 April 2009

John Kwok said: ...ours was not a country founded on "Christian" principles. In fact, in the very first treaty signed with another country (Ironically, in light of recent incidents, one of the Barbary States) in 1796, the John Adams administration acknowledged that the United States was not a "Christian" country.

Let's go with the whole quote: "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 Musselmen,- and as the said States never have entered into any war or act of hostility against any Mehomitan 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.

H.H. · 17 April 2009

Seward said: I think that one of the reasons why we have so much conflict over what the proper role of religion and government are today is the increasing level of government interference in the lives of the citizenry; that is just going to naturally draw religion more and more into government as religious groups try to protect themselves from government as well as try to become beneficiaries of such.

Can you give an example of what government interference religious groups might be trying to protect themselves from?

Seward · 17 April 2009

H.H.,

Well, for example, a lot of religious folks have a problem with the "neutral law of general applicability" standard found in the Employment Div. v. Smith decision. This is potentially a significant problem for minority religions or even atheists.

And of course the latter part of my equation is also important; states which become significantly involved in making religions a big beneficiary of their largesse will probably suffer from a diminished and less healthy market in religions.

John Kwok · 17 April 2009

Dan, and especially, Paul, thanks for jumping in:

Paul Burnett said:
John Kwok said: ...ours was not a country founded on "Christian" principles. In fact, in the very first treaty signed with another country (Ironically, in light of recent incidents, one of the Barbary States) in 1796, the John Adams administration acknowledged that the United States was not a "Christian" country.
Let's go with the whole quote: "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 Musselmen,- and as the said States never have entered into any war or act of hostility against any Mehomitan 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.

I didn't have the quote from that treaty handy, but it has been published recently in a couple of places, most notably, Richard Dawkins's "The God Delusion", if I'm not mistaken. Your comments merely reaffirm what I said regarding this country's founding is correct; that it was by a group of enlightened Deists who had no desire to have an "official" state religion for their new nation, but rather, recognized that there should be a separation between church and state (which Jefferson privately admitted to in some correspondence dating from around 1800). Appreciatively yours, John

Flint · 17 April 2009

The politicians of the time had several issues to reconcile:

1) Religion tends to inculcate values, and when religion is shared, values are shared. No polity is going to last long or be particularly coherent unless most of its citizens have similar values.

2) Most of the inhabitants of what would become the US were, in fact, Christians of various stripe.

3) Official state religions have a rotten track record, because religions tend to schism along fault lines of incredible triviality. There are more than 10,000 Christian sects in the US, each disputing all the others over details like how many angles can dance on a pin head. Government does NOT want to get embroiled in these disputes.

4) Government is not going to command the necessary respect and obedience unless certain expected rituals are performed, and religious rituals are important among them - prayers before official legislative sessions, chaplains in the military, contrast with "godless communism" on our money and in our patriotic pledges, etc.

So given the overwhelming predominance of Christians among the US population, it's pretty much unavoidable that Christianisms will seep into government to some limited degree, nor is it going to be easy to dig them out. If the statement "In God we Trust" isn't an endorsement of a religious position, then the First Amendment is meaningless. You can't get any more emphatically endorsive than that! But can anyone imagine Scalia finding against it on the grounds that it's a FLAGRANT violation of the Constitution? After all, Scalia's religion informs his decisions consistently. And if you think the Supreme Court is not politically sensitive, you're poorly informed.

So OK, the US is not a "Christian nation", but it must necessarily not unduly offend an overwhelmingly Christian majority of voters and citizens. And that means sometimes the separation between church and state has to be a bit flexible, and make compromises.

Which is something quite different from Egnor's vision, of the state adopting and enforcing his personal beliefs with ruthless rigidity, guaranteeing a free ticket into heaven for all except those whose different beliefs could not be broken. And they didn't deserve heaven anyway, so how we treated them doesn't matter.

Seward · 17 April 2009

John Kwok,

Your comments merely reaffirm what I said regarding this country’s founding is correct; that it was by a group of enlightened Deists who had no desire to have an “official” state religion for their new nation, but rather, recognized that there should be a separation between church and state (which Jefferson privately admitted to in some correspondence dating from around 1800).

Well, the "founding" was as much by the various state conventions as it was by the so-called founders. They are the ones who actually empowered the constitution and its various amendments and it is their general understanding of the words written therein which count for the most. Washington and a number of other figures of similar import made similar arguments not longer after the constitution came into force. Given the popularity of contract theory and thus consent by the governed at the time that shouldn't be that surprising.

Rolf Aalberg · 18 April 2009

For people with more than a casual interest in constitutional matters, this might be of some interest:

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

We are quite happy with it except for the fundies; would have to be something badly wrong if they were. The main issue today is the long standing demand that the church itself instead of government appoint bishops.

But we are of course rather secular her in Scandinavia; going to church - or not, is not much of an issue. We baptize our children, get married and buried by the church (if we want to), and that's about it, for most of the people.

John Kwok · 18 April 2009

Seward, While you are partially correct, the real "founding" was by the "intellectual elite" I've referred to. I strongly suggest reading the work of Brown University historian Gordon Wood (incidentally, one of my college professors), who has emphasized the radical nature of the American Revolution in his voluminous writings:

Seward said: John Kwok, Your comments merely reaffirm what I said regarding this country’s founding is correct; that it was by a group of enlightened Deists who had no desire to have an “official” state religion for their new nation, but rather, recognized that there should be a separation between church and state (which Jefferson privately admitted to in some correspondence dating from around 1800). Well, the "founding" was as much by the various state conventions as it was by the so-called founders. They are the ones who actually empowered the constitution and its various amendments and it is their general understanding of the words written therein which count for the most. Washington and a number of other figures of similar import made similar arguments not longer after the constitution came into force. Given the popularity of contract theory and thus consent by the governed at the time that shouldn't be that surprising.

Regards, John

Marion Delgado · 18 April 2009

Egnor should love Sandefur. After Sandefur's "starved the beast" and "gotten his money back" and there are no public schools, and no one bothers educating mi-norities or the handicapped or the poor, and all schools are homeschooling or fundie or Catholic parochial schools, only a handful of preppie charter schools will still teach evilution. Most schools won't even have to teach the controversy. I hope we're all on board with separation of State and Education here.

Best of all, only the libertarian and randite approved functions of government will be left - cops, courts, soldiers. And who needs a science education to do any of those three, really?