18 May 2012

Separation of Church and State

"(His adversaries looking for some opportunity to trip him up) come and say to him, 'Teacher, we know that you are honest and impartial, because you pay no attention to appearances, but instead you teach God's way forthrightly. Is it permissible to pay the poll tax to the Roman emperor or not? Should we pay or should we not pay?'

But he saw through their trap, and said to them, 'Why do you provoke me like this? Let me have a look at a coin.'

They handed him a silver coin, and he says to them, 'Whose picture is this? Whose name is on it?'

They replied, 'The emperor's.'

Jesus said to them: 'Pay the emperor what belongs to the emperor, and God what belongs to God!' And they were dumbfounded at him." Mark 12:12-17.
"God has ordained the two governments: the spiritual, which by the Holy Spirit under Christ makes Christians and pious people; and the secular, which restrains the unchristian and wicked so that they are obliged to keep the peace outwardly…The laws of worldly government extend no farther than to life and property and what is external upon earth. For over the soul God can and will let no one rule but himself. Therefore, where temporal power presumes to prescribe laws for the soul, it encroaches upon God's government and only misleads and destroys souls. We desire to make this so clear that every one shall grasp it, and that the princes and bishops may see what fools they are when they seek to coerce the people with their laws and commandments into believing one thing or another. ...

"We are to be subject to governmental power and do what it bids, as long as it does not bind our conscience but legislates only concerning outward matters…But if it invades the spiritual domain and constrains the conscience, over which God only must preside and rule, we should not obey it at all but rather lose our necks. Temporal authority and government extend no further than to matters which are external and corporeal. ...

"There is a story told of Duke Charles of Burgundy. A nobleman captured his enemy. The wife of the captive came to ransom him. The nobleman said he would give the man back to her if she slept with him. The woman was virtuous, but wanted her husband released, and so she went and asked her husband whether she should do it to get him freed. The man wanted to be free and to save his life, and permitted it. But the day after the nobleman had slept with the woman, he had her husband beheaded, and gave him back to her dead. The woman complained of this to Duke Charles who summoned the nobleman and ordered him to take the woman as his wife. After the wedding day, he had the man beheaded, placed the woman in possession of his goods and restored her honor. A truly princely punishment on wickedness. Now no pope, no lawyer and no book could have taught him to give such a verdict. Rather it came from unfettered reason, which is greater than all the laws in books; it is so just a judgment that everyone is bound to approve it and find written in his heart that it is right. Augustine writes the same in his De sermone Domini in monte. And therefore written law is to be held in lower regard than reason, for indeed reason is the source of all laws, that from which they sprang. The source is not to be constricted by the stream, and reason is not to be held captive by letters. " 
Martin Luther, On Secular Authority (1523).
"[N]o person within the said colonye, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments." Charter of Rhode Island and Providence Plantations (1663) [Roger Williams].
"Officers, both of the United States and of the several states, shall be bound by Oath or Affirmation to support this Constitution; but no religious Test shall be required as a qualification to an Office…" United States Constitution, Article VI (1789).

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." United States Constitution First Amendment 
"[T]he question is raised whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted if he entertains a religious belief that the law is wrong.

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.

The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is what is the religious freedom which has been guaranteed.

Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining h
eretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State, having under consideration "a bill establishing provision for teachers of the Christian religion," postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested "to signify their opinion respecting the adoption of such a bill at the next session of assembly."

This brought out a determined opposition. Amongst others, Mr. Madison prepared a "Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session, the proposed bill was not only defeated, but another, "for establishing religious freedom," drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined, and, after a recital

"that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty,"
it is declared
"that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order."
In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

In a little more than a year after the passage of this statute, the convention met which prepared the Constitution of the United States. Of this convention, Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff.Works 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. 1
 Jeff. Works 79. Five of the States, while adopting the Constitution, proposed amendments. Three -- New Hampshire, New York, and Virginia -- included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress, the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say:
"Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties."
Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? 
To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." Reynolds v. U.S., 98 U.S.145, 162-67 (1878).

There is a long and storied history to the notion that religious practice and civil society should operate in mutually exclusive spheres: religion should govern the spiritual aspects of life—belief, opinion, faith, etc.—and secular authority governs actions and practices.

This has distinct advantages for both religions and civil society. Individuals have the freedom to practice their religious beliefs without interference from governmental officials. No mayor, county sheriff, legislator, governor, or president can tell me I must worship the flying spaghetti monster—or that I mustn't.

By the same token, no pope, bishop, priest, deacon, pastor, elder, etc., can extract a confession of faith from me, make be attend services, force me to tithe, or use the authority of the state to punish me for heretical beliefs or no beliefs whatsoever.

There are disadvantages as well. Religionists may not enforce any practices which violate the secular civil or criminal laws or impinge the rights or freedoms of non-religionists or other religionists. For example, in the U.S., Mormons may not practice polygamy and Pagans may not practice human sacrifice and Roman Catholics may not put Protestants or Jews to death upon the Inquisitional putting of the question.

In civil society, as well, a certain "moral" authority is unavailable to governmental action. For example, in the U.S., homosexuals may not be put to death because the Mosaic Code in Leviticus authorizes it or some Roman Catholic prelate believes it should be so.

This doesn't mean there aren't plenty of close questions on the issue. But what it does mean is that the secular authority—ultimately the Supreme Court here in the U.S.—decides these issues rather than a Pope or Ayatollah or Lama.


Church And State

HERE is fresh matter, poet,
Matter for old age meet;
Might of the Church and the State,
Their mobs put under their feet.
O but heart's wine shall run pure,
Mind's bread grow sweet.
That were a cowardly song,
Wander in dreams no more;
What if the Church and the State
Are the mob that howls at the door!
Wine shall run thick to the end,
Bread taste sour.

William Butler Yeats