The Disestablishment Clause

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – First Amendment of the US Constitution

When I was in college I led a small campus Christian organization. We had about 10 or so folks (it was small). My senior year we asked for funding from the student government to hold some events. After all, other groups got funding from the student-wide tax (“fees”), why not us? Besides, the Supreme Court had recently held that such fees created a public forum and Christians could not be denied access based on their religion. (One they may have actually gotten right.)

I was summoned before the student government and asked to explain myself and what kind of events I wanted to hold. So, I did. One particularly ardent left-leaning student asked if I was going to hold prayers at a certain proposed meeting. My response was “yes, and an altar call too.” There were gasps. They did respect the honesty though. (I wasn’t about to lie – my Lord has this thing about not bearing false witness.) There was nearly mayhem in the room. Some wanted me to recant and agree to not have prayers, or an altar call, or any discussion of God, Jesus, or the Bible. Some even wanted to force the issue into court and all the way to the Supreme Court to make them clarify their “nonsensical” ruling that Christians could get funding. Finally, one nice gentleman pulled me aside and said “we’ve counted the votes, you’re going to win, don’t back down and demand full funding.” So I did – and we won.

It was a good time. I wonder just how much it might change in the future.

This past week president Obama waded into the controversial “Ground Zero Mosque” issue – standing ardently on the first amendment and declaring that the government cannot infringe upon the free practice of religion. At once conservative commentators howled. This love of the Constitution and ardent defense of freedom of religion is welcome indeed – but has been a long time in coming. Where exactly was it when police ordered a school group not to pray on the steps of the Supreme Court? Where was it when president Obama moved to rescind the “conscience clause” that allowed health care professionals to refuse to perform services (i.e. abortions) that they felt were immoral? Nowhere.

Now, our good progressive friends will argue that these examples violate the “establishment clause” of the first amendment. That if public funding were used in any function that had religious purpose, it could be seen as the government establishing a religion. (Personally, I think this argument is nonsense on its face – but we can do a bit better than that.) These examples demonstrate some disturbing realities about just how the government goes about subverting freedoms guaranteed by the first amendment.

Let me show you what I mean. Suppose you wish, as a free person, to go to the movies this weekend. Further suppose that I, for whatever reason, don’t want you to go. I can’t very well stop you can I? You are free, and I am not the boss of you. But suppose I decided to offer you $100 to not go to the movie – might you consider not going? Perhaps I offer you $1000. Everybody has a limit, right? I can’t make you stay home from the movies, but I can make it worth your while and thus control your behavior.

Now, let’s add an even more sinister twist to our little plot. Suppose I am the government and I have the power to tax you. Now I simply take the $1000 from you and offer to give it back (or, maybe give back $500) if you do as you’re told. When you cry foul and accuse me of violating your freedoms, I’ll simply throw my hands up. “I never forced you to do anything.”

At some point, we cross an ominous line where taxing and spending becomes disestablishment. (I personally think we crossed it long ago.) For instance, suppose the government completely takes over the health care industry (just a purely random hypothetical example not related to anything currently going on in our country) and then forbids doctors to refuse abortions on moral grounds. Has the government not just outlawed Christians from the medical profession? How is this not a violation of “the free exercise thereof” in regards to religion? (rhetorical question – obviously this is a violation of the first amendment.)

The federal government has been pulling this nonsense for decades. The Constitution clearly limits their authority. They cannot force the people or the states to do certain things. What they can do is tax the dickens out of us and offer to benevolently give some back if we do as we’re told. State governments are constantly offered federal subsidies (taxed from their citizens) as long as they comply with federal desires. The tax code itself is radically convoluted to promote certain behaviors and oppose others. This is all usurpation. The federal government has no authority in these matters – so they bribe us with our own money.

As for religion, what will happen when the federal government takes over all aspects of the economy? Or, perhaps they’ll just take over 5% (via subsidy) of every aspect. Corporations receiving funds cannot allow the free practice of a religion or even religious influences in the workplace – it would represent an establishment of religion with their 5% subsidy. People who pray, read a Bible, talk about God with coworkers, or refrain from various practices for conscientious reasons may have to be dismissed.

I know, it’s a rather doomsday scenario, and unlikely to unfold. But, we’ve already started down that path. We’ve already crossed the line. I am taxed by the federal government. Those funds are used to pay for all manner of functions including federal lands and buildings. I implicitly own a portion of those buildings, and yet I cannot pray there – on my own property (sort of).

So what is the answer? Well, the pragmatic solution would be to recognize that free exercise of religion in the public square is not an establishment of religion and just let it go. If progressives are unwilling to follow that route (as I suspect) then we can move on with my preferred solution to the whole thing. Eliminate all federal spending that can in anyway run foul of this issue – every last bit. If the federal government isn’t subsidizing college educations, or public buildings, or health care – then we don’t run into these issues where religious freedoms are violated in the name of religious freedom.

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4 Responses to The Disestablishment Clause

  1. Eric says:

    This is an area where I admit that I do not have very firm ideas about what the law should be, mainly because I think there is terribly dangerous ground here. Your final paragraph perhaps answers the mail, because it seems to effectively make the problem go away, so to speak. I’m not sure.

    I remember vividly my third grade teacher, who was, looking back, every bit the frightening, Bible-thumping, religious nut that made that stereotype what it is today. Punishments frequently consisted of a whack directly on the top of a student’s head with her wedding ring. But more to the point, every morning as a class we would together put our heads on our desk, close our eyes, and Mrs. Roberts would lead us in her flavor of Christian prayer. (Remember, this was a public school, but it was a public school in Kansas, so apparently it was ok.)

    Even as a third grader, I saw the problem with this. Imagine some little boy or girl who was Jewish (I didn’t know any), or Mormon (I knew one, but not at my school), or whatever, who I am quite sure if it came to it was “free to participate or not as s/he wished.” Does anyone *remember* being a kid? I can’t imagine the pressures that environment must have exerted.

    Now, just in case anyone doesn’t see the problem, suppose that that same teacher had led Muslim prayer twice a day. (I know, this was in Kansas– quit laughing, I’m trying to make a point.)

    I guess I am suggesting that your final point is not just a pretty good one, but perhaps the right one. In a public school, balancing freedom of religious observance and even the appearance of establishment of religion seems not just difficult but perhaps impossible. But if the schools aren’t public, then maybe the point is… moo.

    • nomasir says:

      “the point is moo” – nice.

      I think there is a clean answer, but it won’t make everybody happy. No direct federal funding of public education. Or, no money directly to the schools. Let all the federal subsidies be handed out as vouchers to the taxpayers. Then, having made no distinction between the people and asking no questions about their use of the money (other than “was it for education”), the people can freely choose religious or non-religious schools without running afoul of establishment. The education would be better (competition). Parents could make choices for their own kids (instead of school boards). It is a win-win in my estimation – but the teachers unions and the liberal indoctrinators will lose their foothold in the system – so they will fight tooth and claw.

      Also, always good to see the Christians thumping kids in the head. That’s always how Jesus dealt with children in the Bible.

  2. jessee says:

    I like your “going to the movies” analogy, I never thought of it that way, but it makes perfect sense.
    The thing with schools is tricky. I can’t imagine doing away with all publicly funded education just to avoid government “incentivising.”

  3. Joe Santoni says:

    Maybe it’s just me…. but I Had a Mrs. Roberts too. It certainly did NOT harm me… of course, this as N.J. in the 50s. In my family, YOU WENT TO CHURCH EVERY SUNDAY, Which church did NOT matter, Baptist? Pentecostal, or early mass. It wasn’t until I was well into adulthood that I realized two things. G_d is G_d… religion is religion… and you can have respect for ALL good men… even if their views differ.

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