Today’s show is on Religion and the Secular State.  In our beloved more or less secular nation our thinking is anchored by the first part of the first amendment

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.

The 14th amendment extends this to the states, many of which had established religions at the time of the constitution, as I remember  --- I wasn’t there, but as I seem to remember from my American History classes.

What were the founding fathers worried about?  The sort of Protestant versus Catholic or Anglican versus Puritan battles that made Europe such an unpleasant place?  Or the rights Jews and Muslims and Buddhists?  Or the rights of atheists and freethinkers?

Here are some random thoughts of mine on issues that have arisen in my living memory.  The acute reader will note that they are not defended with philosophical arguments, and may be quite inconsistent. They are intended as grist for the philosophical mill, not as finished philosophical reflections.  An hour with Ken Taylor and Robert Audi will leave me with a much more sophisticated understanding of all of this.

THE TEN COMMANDMENTS

A big issue facing our nation is whether the Ten Commandments can be exhibited at court houses and in other public places.  Well of course they can be, since they already are, most prominently, I understand, in the quarters of the U.S. Supreme Court.  But is it constitutional?  Is it right?

It seems to me that there is a pretty good argument that allowing the Ten Commandments to be displayed does not violate the amendment. They do play an important role historically in the development of the idea of the government by law rather than the whims of individuals. Most of the commandments aren't all that controversial.  It's rather nice to think of Justice Thomas looking out at the one about not covetting they neighbor's wife as he ponders deep issues.  Of course, he tends to be a strict constructionist, and its dubious that any of the women on the porno flicks he liked to watch were wives of neighbors.  So maybe it doesn’t bother him.

That commandment, for one, suggests that the placement of the ten commandments in a court house doesn't constitute a serious proposal that these commandments are a guide to the central priorities of American jurisprudence, much less behavior in the suburbs.

Why, one might ask, should the Ten Commandments be enshrined and not the Code of Hamurabi, which is also historically relevant to the very tradition that led to the conception f the rule of law as it developed in the West and eventually found its way into America's political system?  Well, one reason is that the Code of Hamurabi has 282 Laws, so that it would be quite expensive, and use up a lot of space, to carve it into the walls of courthouses.  About half of them end with “shall be put to death.”  As a liberal response to the Ten Commandments, this probably isn’t a winner. If you want to read the Code of Hamurabi, you’ll find it at:
http://www.unesco.org/delegates/iraq/hamurabi.htm

Actually, however, I think it would be a good idea to carve all of the prohibitions and commandments from what Christians refer to as "The Old Testament" into the walls of our courthouses.  The reason for this is that some of our politicians and religious leaders like to quote rather selectively from these commandments and prohibitions.  For example, almost everyone knows that that in the Old Testament it says that men are not supposed to sleep with men in the way they sleep with women, and if they do they should be put to death.  But it also says, I think in the same book, Deuteronomy or Leviticus or one of those books I read to put myself to sleep at night,  that if a woman grabs the private parts of a man who is fighting with her husband, in order to break up the fight, she shall have her forearm cut off.  All the passages in which God goes on endlessly about the exact size of shape of and lining for the box that is to hold his commandments would also be usefully carved into the walls.  This would lead, one would hope, people to laugh at attempts to base social policy for America in the twenty-first century on the rantings of the God of the Old Testament. However, given our Congress, maybe it would lead to a lot of one armed-women.

One of the idiots that television interviewed about this said that the Ten Commandments would have to be translated one way or another, and that Christians translate them differently than Jews, and different denominations of Christians translate them differently, so the very translation would violate the separation of church and state.  Give me a break.

THE PLEDGE OF ALLEGIANCE

I feel much differently about the phrase “under God” in the Pledge of Allegiance, by the way.  That piece of hypocrisy was mounted in my living memory, during the Eisenhower years, as a way of showing that difference between Godless Communism and our American Way of Life.  It was not only hypocritical but incoherent, since if there is a God, presumably all nations are under God, the Godless as well as the religious.  We learned to add those words to the Pledge of Allegiance right at the same time we were learning to “duck and cover” in case of a Soviet attack on Lincoln, Nebraska.  Maybe the U.S. is too far under God for him to stop Soviet Bombers. 

The Pledge of Allegiance itself is not something of great historical significance; it's just a marketing gimmick of a flag manufacturer that caught on.  I am totally sympathetic with the fellow who took it to the Supreme Court, who has been pretty much pilloried in the press as a silly ass.  The verdict of the New York Times was that the pledge of allegiance issue was silly and the court should ignore it, but I thought their reasoning was silly.  No one should be required to add the words "under God" to their solemn recitation of a marketing gimmick.  I explained my thinking in a letter to the Times, which they didn’t print.

PEYOTE

Another issue that has come up over the years is whether religions that have traditionally done something that is against the law should be exempted from the law.  One case was an Native American tribe that used peyote.

Now this principle would obviously have its limits.  If a tribe of Native Europeans could show that it was part of their religion to rob people, or to murder them, or if Anglicans claimed that driving on the left was actually a British religious practice, we wouldn’t allow that on the grounds of the First Amendment and religious liberty.  Where do we draw the line?  When I ask this to those who think the religious peyote user should be exempted from the law, they say that the line should be drawn at those practices which are actually harmful. Harmless things that are illegal, or things that at most harm those who indulge in them, should be exempted.  But then, why should such things be illegal in the first place?

POLYGAMY

One of the myths of the religious history of the United States is that there was a big battle on religious grounds that led to the Mormons having to change their practices about polygamy in order for Utah to become a state.  I gather that is not so.  The legal battle was not fought on first amendment grounds; the religious clause of the first amendment didn’t become a much-used pillar of liberal jurisprudence until later.  The reasons the Mormons were forced to eat humble pie on this issue was that the Hayes administration, in line with the compromise that gave them the disputed Hayes-Tilden election, was ending reconstruction in the South.  In order to assuage the Northern voters, for letting up pressure on the reviled South, they had to put pressure on the second most reviled group in America, the Mormons.  The Mormons defended themselves on the grounds of States Rights; i.e., there was nothing in the constitution giving Congress the right to decide the rules of marriage.  Sound familiar?  If Massachusetts had been a territory then, and allowed Gay Marriage, it probably would have had to give it up.

Well, those are my deep thoughts about Religion and the State.  We'll dig deeper with Robert Audi soon.

John Perry