Things To Act
Saturday, February 14, 2004
Ten Commandments Yet Again--First Amendment, Religion, & Government Speech
A reader emails the following questions, and asks for elaboration.

“I don't necessarily disagree with any of your conclusions, but I still wonder:
How can the right answer be for the state to become a-religious, required to spend funds to assure that no non-believer (or different believer, or believer) is offended by the beliefs or practices of another?”

I’m not sure that this follows. If the state is doing its job properly, it won’t be advocating any particular set of religious beliefs (which may still be offensive to some, but they could always move to a non-First Amendment-protected country). It shouldn’t cost anything extra to not advocate a belief, and even if the state could do something cheaper, it wouldn’t be worth the tradeoff in loss of religious neutrality, by and large.

“The book of Joshua and the BofM clearly recount the results of disbelief and wickedness. Somehow we need to come to a result that encourages people of faith, without trampling the right of a person not to believe.”

Alma 1:17 seems to give a good answer: “and now the law could have no power on any man for his belief.” My understanding of the message of this chapter (and of our theology in general) is that forced belief is bad. We must encourage people to be righteous through noncoercive means.

“Until religion is stamped out of society, it is impossible to create a society not touched by religion. Creating an environment hostile to religion in the name of the 1st amendment is just a different manifestation of a state religion, is it not?”

I suppose this gets into a semantic discussion of what an environment ‘hostile’ to religion is. Others are free to believe as they will, but I don’t think it’s ‘hostile’ to tell Christians they can’t put the Ten Commandments up in a courtroom any more than it’s ‘hostile’ to prevent Muslims from putting the Five Pillars up, or for that matter, any group to put up some statement of belief that has nothing to do with our judicial system. The walls of the courthouse are not a place for interest groups to be posting messages of any sort.

“If a judge wishes to pray in his courtroom, should he not have that privilege?”

I’m inclined to think not, at least not publicly. Interjecting religion into a secular process, particularly one fraught with such important decisions that we go to great lengths to try to assure the impartiality and fairness of the judge, seems problematic at the least. Other peoples’ prayers frequently make me uncomfortable, even when the prayer is not in a position of authority over me. I imagine it would be much worse in a situation in which the judge has a considerable degree of power over you. Even if the judge did manage to stay neutral, why take the risk of making the process seem biased through nonrelevant means? Finally, the judge is an employee of the state, and, as with any nonelected employee of the state, waives certain privileges while on duty (elected officials, I think, are different—they serve at the will of the people, and have greater latitude. But the courts are specifically in place to keep them from getting out of hand, not least on matters of religion).

“Those who do not wish to pray with him should not be forced to do so. Neither should he be prevented, for the same reason.”

So why can’t he pray alone, in his chambers? What purpose does making the prayer public serve, other than to make people feel either more or less comfortable (either of which is not a good outcome, from a perspective of maintaining an impartial judicial system—the judge shouldn’t form any attachments with one party over the other, for any reason. And if both parties are so fired up abut prayer that it will make a difference in their attitudes, why are they in court at all, given the New Testament’s advice on the subject of suing believers?)

“In an earlier time, people thought it appropriate to place the 10 commandments in a public building. To keep them there requires no expenditure of public funds. They stand as a monument to what an earlier generation believed, but are not necessarily an endorsement of the state of any particular religious views. Does not the expenditure of public funds to remove them (given that they are already there) violate the 1st Amendment as much or more so than leaving them there simply as part of the historical heritage of that building?”

A more dedicated civil libertarian than I would argue that keeping totally immobile obscure monuments there does indeed violate the First Amendment. Personally, if they’re just engraved on the outside of the building, I don’t think it’s that big a deal. If it’s cheap and easy to remove a posted monument, though, it should be removed. And, in my understanding, most of the current controversies (at least the ones linked with Moore) aren’t so much over old monuments (though some of those exist), but over activist judges wanting to post new ones. This kind of behavior strikes me as fundamentally ridiculous, not only serving no constructive end, but actively undermining public perceptions of Christianity.

“Do we push the limits of the First Amendment by allowing people to hold opinions about religion and express them freely, not as representatives of the state but as private citizens? If they do not use their office to enforce those views, can we forbid them to express those views simply because they hold public office?”

But there is a difference between expressing such views as a private citizen and using the powers of one’s office to push them on others. In all responsibilities as a representative of the state, the official must be scrupulously impartial in all matters of religion, or, if he is unable to, to recluse himself (as discussed above, I don’t think this applies as much to elected legislators or executive officers; judges, however, definitely shouldn’t cross this line, even if elected (itself a questionable idea)). It strikes me as rather like my responsibilities as a TA—in accepting employment, I agree to represent my professor, the department, and the university, not my own views. In grading student papers, I cannot mark down simply because a student expresses an opinion I find distasteful—I must use objective criteria in all my grading. In addition, if I get a student who I know in some context other than class, I decline to grade his material if I have the slightest doubt I could remain impartial. To do otherwise undermines the credibility of the entire system. I don’t have any inherent right to force my ideological viewpoint on students, or to reward those whose views I find superior, just as judges don’t have the right to use their office to force their ideology on others. In their private actions, judges are free to do whatever they want, just as all citizens are.

“Must all public discourse be devoid of all religious views? Must we delete all references to God and religion from all of the history and historical documents of our culture?”

It depends what you mean by public discourse. Normal public expression is fully protected by the First Amendment. When the government is the speaker, however, the First Amendment prohibits the government from endorsing any particular religious viewpoint. It is possible for the government to discuss religion’s impact on history without taking a stance for or against the beliefs in question (though it doesn’t always do it very well, at least in my schools—one of the reasons I’m touchy about the issue). And, for the record, I think that having “In God We Trust” on our money or the mention of God in the third verse of the national anthem may not be fully justifiable, but don’t really matter, and so should be allowed under a grandfather clause. The Pledge of Allegiance, however, is a different, issue, but in the interests of avoiding flaming, one I’ll leave alone for now.

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