separation of church and state – Warren Throckmorton

When the GOP promoted secular public schools

Texas Governor Rick Perry is supporting cheerleaders at a middle school in Beaumont who want to lead cheers with Bible verses. According to the Houston Chronicle, the cheerleaders post banners with verses and Christian phrases during sporting events. One such verse is “if God is for us, who can be against us?” I wonder if the team has lost any games this year.

A complaint has been lodged in court by the Freedom from Religion Foundation. Yesterday, a judge handed down a temporary injunction allowing the girls to continue displaying their Bible banners.

Perry is a Republican and it is generally true that Republican leaders have favored mixing religion in schools. At least that is often true of current Republican leaders. However, it was not always so.

Researching the GOP through the Reconstruction era, I was surprised to see the GOP on record against sectarian aims in public education. For instance, in the presidential campaign of 1876, President Grant said in a speech in Iowa

Encourage free schools and resolve that not one dollar of money appropriated to their support no matter how raised, shall be appropriated to the support of any sectarian schools.*

The Republican platforms were quite clear in this regard through this period. Here is the 1876 platform statement on public education:

7. The public school system of the several states is the bulwark of the American republic; and, with a view to its security and permanence, we recommend an amendment to the constitution of the United States, forbidding the application of any public funds or property for the benefit of any school or institution under sectarian control.

Then again in 1880:

3. The work of popular education is one left to the care of the several States, but it is the duty of the National Government to aid that work to the extent of its constitutional power. The intelligence of the Nation is but the aggregate of the intelligence in the several States, and the destiny of the Nation must be guided, not by the genius of any one State, but by the aggregate genius of all.

4. The Constitution wisely forbids Congress to make any law respecting the establishment of religion, but it is idle to hope that the Nation can be protected against the influence of secret sectarianism while each State is exposed to its domination. We, therefore, recommend that the Constitution be so amended as to lay the same prohibition upon the Legislature of each State, and to forbid the appropriation of public funds to the support of sectarian schools.

And then in 1892, the platform became quite specific about not mixing church and state in education (or anywhere else for that matter):

The ultimate reliance of free popular government is the intelligence of the people, and the maintenance of freedom among men. We therefore declare anew our devotion to liberty of thought and conscience, of speech and press, and approve all agencies and instrumentalities which contribute to the education of the children of the land, but while insisting upon the fullest measure of religious liberty, we are opposed to any union of Church and State.

Now GOP culture warriors go to court to allow sectarianism in the schools. I think the GOP had it right the first time around.

*Charles Calhoun. Conceiving a new republic: The republican party and the southern question, 1869-1900. Lawrence, KS: University Press of Kansas, 2006, p. 84.

Thomas Jefferson, civil government and religion

David Barton will be coming out with a book called The Jefferson Lies next spring. I noted here that he is skilled at spreading them which will make the book entertaining at the least.

As a service in the effort at offsetting lies about Thomas Jefferson, I thought it might be helpful to point Barton to a letter from Thomas Jefferson to Thomas Cooper. The letter, written on February 10, 1814 sets out Jefferson’s argument that British common law was not influenced by Christianity in any direct manner. Thus, any indirect claim that our law was based on Christianity indirectly via influence from Britain is also suspicious. Barton promotes the notion that American law derives from the Bible. He has also argued that Jefferson did not mean for the state to separate Christianity from the operation of the state.

Jefferson, on the other hand, wrote to Thomas Cooper that Christianity came to Britain after common law was established. Jefferson began his letter,

DEAR SIR, — In my letter of January 16, I promised you a sample from my common-place book, of the pious disposition of the English judges, to connive at the frauds of the clergy, a disposition which has even rendered them faithful allies in practice. When I was a student of the law, now half a century ago, after getting through Coke Littleton, whose matter cannot be abridged, I was in the habit of abridging and common-placing what I read meriting it, and of sometimes mixing my own reflections on the subject. I now enclose you the extract from these entries which I promised. They were written at a time of life when I was bold in the pursuit of knowledge, never fearing to follow truth and reason to whatever results they led, and bearding every authority which stood in their way. This must be the apology, if you find the conclusions bolder than historical facts and principles will warrant. Accept with them the assurances of my great esteem and respect.

Then, Jefferson included a portion of his writings on the subject from a past effort. He notes that the belief in the Christian influence on British law has been assumed by various writers, but not proven. He says they have all quoted each other as authorities.

Thus we find this string of authorities, when examined to the beginning, all hanging on the same hook, a perverted expression of Prisot’s, or on one another, or nobody. Thus Finch quotes Prisot; Wingate also; Sheppard quotes Prisot, Finch and Wingate; Hale cites nobody; the court in Woolston’s case cite Hale; Wood cites Woolston’s case; Blackstone that and Hale; and Lord Mansfield, like Hale, ventures it on his own authority.

The crux of the matter for Jefferson is that Christianity was not adopted by the British as common law. He wrote:

For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that time to the date of Magna Charta, which terminates the period of the common law, or lex non scripta, and commences that of the statute law, or Lex Scripta. This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it. If it ever was adopted, therefore, into the common law, it must have been between the introduction of Christianity and the date of the Magna Charta. But of the laws of this period we have a tolerable collection by Lambard and Wilkins, probably not perfect, but neither very defective; and if any one chooses to build a doctrine on any law of that period, supposed to have been lost, it is incumbent on him to prove it to have existed, and what were its contents. These were so far alterations of the common law, and became themselves a part of it. But none of these adopt Christianity as a part of the common law. If, therefore, from the settlement of the Saxons to the introduction of Christianity among them, that system of religion could not be a part of the common law, because they were not yet Christians, and if, having their laws from that period to the close of the common law, we are all able to find among them no such act of adoption, we may safely affirm (though contradicted by all the judges and writers on earth) that Christianity neither is, nor ever was a part of the common law. Another cogent proof of this truth is drawn from the silence of certain writers on the common law. Bracton gives us a very complete and scientific treatise of the whole body of the common law. He wrote this about the close of the reign of Henry III., a very few years after the date of the Magna Charta. We consider this book as the more valuable, as it was written about fore gives us the former in its ultimate state. Bracton, too, was an ecclesiastic, and would certainly not have failed to inform us of the adoption of Christianity as a part of the common law, had any such adoption ever taken place. (my emphasis)

Then Jefferson ends his argument by noting that Exodus was meant for the Jews and the teachings of Jesus were meant to be followed as conscience dictated not by coercion of the state.

In truth, the alliance between Church and State in England has ever made their judges accomplices in the frauds of the clergy; and even bolder than they are. For instead of being contented with these four surreptitious chapters of Exodus, they have taken the whole leap, and declared at once that the whole Bible and Testament in a lump, make a part of the common law; ante 873: the first judicial declaration of which was by this same Sir Matthew Hale. And thus they incorporate into the English code laws made for the Jews alone, and the precepts of the gospel, intended by their benevolent author as obligatory only in foro concientiae; and they arm the whole with the coercions of municipal law. In doing this, too, they have not even used the Connecticut caution of declaring, as is done in their blue laws, that the laws of God shall be the laws of their land, except where their own contradict them; but they swallow the yea and nay together. Finally, in answer to Fortescue Aland’s question why the ten commandments should not now be a part of the common law of England? we may say they are not because they never were made so by legislative authority, the document which has imposed that doubt on him being a manifest forgery.

Note at the end that he denies that the 10 Commandments were ever a part of the common law of England. As for America, one cannot read this letter and think that Jefferson supported the concept, popular among proponents of a Christian America, that the “laws of God shall be the laws of their land.”

Young conservatives and DADT – So What?

If RenewAmerica has a Christmas party, I want to attend just to watch Jamie Freeze take on the good ol’ boys. Jamie is a young conservative woman and a student at Regent University law school who thinks the repeal of Don’t Ask, Don’t Tell is a good thing. Elsewhere, on the 17th, the ACLJ’s Jordan Sekulow essentially yawned at the repeal. I will discuss his WaPo column after I briefly excerpt Freeze’s article titled, “General George S. Patent Leather: Conservatives and DADT,” Freeze counters fellow Renew America columnist Bryan Fischer’s effort to link the lunar eclipse with the repeal of DADT.

Freeze is a traditional evangelical regarding sexuality but she does not believe government should require citizens to adopt her views. She says:

…as one Christian associate said, “For us to feel appointed to execute some sort of cosmic justice on the Lord’s behalf is the height of hubris.”

Our government governs Christians and non-Christians. America was founded on Christian principles by Christians and non-Christians. It was not an exclusively Christian nation or else the 1st Amendment would have been nullified from the start. Our founders quickly realized that mandating church attendance and tithing were futile attempts in changing the hearts of men. That is why the Baptists were the forerunners of separation of church and state in colonial America — they did not want a state church because God did not need the state to accomplish His plan. The state interfered with God’s work. As a Baptist, I am proud of the tradition that Isaac Backus and John Leland gave America, and I seek to preserve it.

I would add Roger Williams to the list as well. Williams and then later the early Baptists Backus and Leland stood for a state that protected the rights and conscience of all. I really like this quote attributed to Leland by Wikipedia:

“The notion of a Christian commonwealth should be exploded forever…Government should protect every man in thinking and speaking freely, and see that one does not abuse another. The liberty I contend for is more than toleration. The very idea of toleration is despicable; it supposes that some have a pre-eminence above the rest to grant indulgence, whereas all should be equally free, Jews, Turks, Pagans and Christians.” – A Chronicle of His Time in Virginia.

Freeze then addresses several arguments social conservatives have raised against DADT, in one case citing a soldier friend who believes sexual orientation is irrelevant to service. She adds that we need all hands on deck while fighting two wars and channels Barry Goldwater’s observation that people who shoot straight need not be straight.

In what has passed for conservatism in recent years, Freeze rightly notes that the divide over social issues is growing.

As a conservative, I have already received much criticism for the views expressed in this article, and I anticipate more. One man, a prominent local Republican clearly offended by my views, told me I held no claim to the ideology of conservatism. However, I will share with you what I told him: “If by conservative, you mean valuing life, liberty, and property above all other rights, then yes, I am conservative. I am a Lockean to the core. However, if, by conservative, you mean I want the government to mandate our lives to the smallest details all for the sake of public morality, then no, I am not a conservative.”

I agree with Freeze here but I do not dismiss the concerns of social conservatives lightly, especially those who are not working for advocacy groups. Many people I know are afraid that the government is going to make them believe things they can’t believe. They are afraid that the kind of philosophy espoused by Williams and Leland will require them to adhere to views they cannot accept. Not so. When laws are judged fairly, protecting the freedom of others does not remove mine. In a society where equal protection is for everyone, it is to my advantage to stick up for the rights of all. By doing this, I am sticking up for my rights to pursue my conscience as well. Where rights seem to be in conflict, we can try to work it out as citizens or involve the judiciary.

Another young conservative who has probably raised some eyebrows is Jordan Sekulow with the conservative ACLJ. Started by Pat Robertson, ACLJ does not have any pro-gay cred, and yet Mr. Sekulow writes, No DADT, No Problem:

The outdated, unworkable “Don’t Ask, Don’t Tell” law will likely be repealed in the next few days. As a Christian conservative broadcaster, attorney, and activist who recently discussed DADT and my opinion about it on-air, I can say that for the most part, social conservatives are not enraged about the end of DADT. In fact, the grassroots has not been engaged on this issue for a long time.

I feel pretty sure that the Family Research Council or the American Family Association will not agree with this assessment since they have been on a full court press to stop the repeal. Sekulow locates his attitude at least partially in his youth, saying

We live in a new time. As a young member of the “religious right,” if a gay friend or family member came to me and said they wanted to join the military, I would gladly be the first to congratulate and thank them. I do not believe they should be barred from serving because of their sexual orientation.

For all those who believe social conservatism is a monolithic mass, one needs to contrast Sekulow’s statement with Bryan Fischer’s “homosexuals in the military gave us six million dead Jews” rant.

I do not want to make too much out of two young conservatives and their views on DADT, but I am inclined to think they are part of what other observers see as a moderating trend among youth toward homosexuality. These young people do not view homosexual behavior as an option within their religious views, but they also seem to be rejecting the strident, stereotyping rhetoric and policies of their elders.