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the Real Argument
Misunderstanding America's Freedom of Religion
by jeremy   July 21, 2005
freedom, religion

I hate to break it to you, but the United States does not guarantee its citizens Freedom of Religion -- at least, not in the way that most of us usually think of it. I'm not writing this essay as a purely academic exercise, but because I think a proper understanding of this freedom is critical in any effort to stop a constitutional amendment to ban gay marriage.

The modern liberal view of Freedom of Religion is that religion (particularly Born Again Christianity) should be something practiced at home, at church, on the Moon, anywhere so long as it is kept completely out of the public arena (unless it's Tibetan Buddhism, a hip cool religion at least when it's viewed as a sort of New Agey feel-good philosophy, and not the complicated, polytheistic, occasionally harsh belief system it really is). Liberals say that elected representatives, at any level of government, should never have a religious thought in their heads as they go about their duties of enacting or enforcing the laws of the land. For liberals, Freedom of Religion should be Freedom from Religion.

Conservatives want to live in a country that helps them fight against what they see as society's moral degradation by enacting laws that criminalize or at least discourage acts that they find immoral and offensive. If an act causes sexual arousal (which is sinful outside of marriage, and only allowed inside of marriage at night when all the lights are out), conservatives want it outlawed. If an act is seen as disrespectful of flag and country, then the government must ban it. They cite America's so-called Judeo-Christian heritage as justification for using religion (Christianity, specifically) as the basis of US law. These conservatives want Freedom of Religion to be Freedom to Enforce (their) Religion.

On the other hand, true libertarian Freedom of Religion would allow everyone to live his or her life freely within the context of his or her religious beliefs. So while Jehovah's Witnesses would continue to not be compelled to say the Pledge of Allegiance and Baptists would continue to not be compelled to dance at high school proms, male Mormons would be permitted to take as many wives as they like, cultists would be allowed to ritualistically slaughter small animals, Rastafarians would be granted the right to smoke marijuana, and Jedi Knights would be free to be with the Force, get in touch with their feelings, or do whatever it is Jedi Knights do (believe it or not, "Jedi Knight" is recognized as a legitimate religion in some places; it appeared on the U.K.'s 2001 census, for example). Of course, given the great range of human religious beliefs, no society could really manage true libertarian freedom of religion. As such, Freedom of Religion in the US and other democratic countries is more limited.

When Americans refer to our right to "freedom of religion," we are referring to a clause that appears in the First Amendment of the US Constitution. Liberals, conservatives, and others all use this same clause to support claims to a variety of viewpoints. But all this text really does is this: it prohibits Congress (though the Supreme Court has interpreted this more widely to mean government in general) from establishing an official religion or keeping people from practicing their religion (verbatim: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.") That's it.

The word "establishment" is the key to understanding freedom of religion as it was meant by the Founders. To know why, we need to talk (just briefly, I promise) about the English Civil War of the mid-17th Century. The war was essentially fought over a fundamental disagreement over the extent and scope of a king's power, but with Puritanical Parliamentarians on one side and Catholic kings and their supporters on the other, religion inevitably got mixed up in it. Kings James I (1603 - 1625) and Charles I (1625 - 1649) were uncompromising in their belief of a king's divine right to rule. Parliament, increasingly determined to wield more power, believed that even kings should be limited by the law. As I said, the debate was complicated by the fact that James I and Charles I were Catholics, while most Members of Parliament were Puritans of one sect or another. No, Puritans were not a single sect, as we often think of them today, though all were Calvinist, believed in predestination, and were determined to expunge Catholic influence from the Established (i.e., Anglican) Church.

The previous monarch, Queen Elizabeth I (1558 - 1603), was not a Catholic, but was relatively tolerant of them and their religion. After Elizabeth died, the Catholic James (and then his son Charles I) ascended the throne and the Puritans in Parliament became convinced that the Papists, as Catholics were labeled, would try to put their country back under the thumb of Rome. It didn't help matters any that James and Charles were Frenchified big-wigged fops convinced that none other than God could judge them as kings.

Tensions were such that King James I threatened to have all Puritans banished, and from the 1620's many fled England for what would become the United States. These folks and their descendants (including some of the Founders) were not only renowned for being intolerant of views that strayed from Puritan doctrine, but for being extremely suspicious of a state-established church. So it is no surprise that this fear was incorporated into the Bill of Rights as a prohibition against the establishment of an official religion.

All right, you concede, but what about the well-known phrase "separation of church and state?" Doesn't that imply that religion should play no part in government? That phrase is not actually in the Constitution. The phrase "separation of church and state" first appeared in the 1947 Supreme Court decision of Everson vs. Board of Education. The issue was whether public funds could be used to bus students to private Catholic schools. The Court actually sided with the students, deciding that it was allowable because, ultimately, schooling has a secular purpose. Justice Hugo Black wrote in his majority opinion, "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable." But that metaphor is not legally as sweeping a statement as it might seem to the layman.

Since then, the Supreme Court has continued to find that only when government acts to promote, endorse, or coerce religious acts or beliefs does it violate the Constitution. For example, in 1962 the court said that teachers and school administrators could not lead students in prayer during school hours, when they would be considered "agents of the state."

But not one law or act has been declared unconstitutional because it was inspired by religious morals or values. After all, we have seen all kinds of laws based on religious morals and values. Bad examples include legalized slavery and treatment of women as second-class citizens, institutions supported by religious texts. More modern and mainstream bans against polygamy and prostitution also have their roots in religious morality. Even bans on sodomy and usury (this is the act of charging excessively high interest on a loan) have their bases in religion. Looking on the other side of the coin, abortion is legal in the US because the Supreme Court says a woman has a right to choose (based on a constitutionally-implied right to privacy), not because a ban on abortion would violate a woman's Freedom of Religion.

This must be clearly understood by liberals because those of us opposed to a Constitutional amendment to ban gay marriage must learn that the First Amendment is not going to be an effective argument or defense. It's simply not going to work.

But doesn't discrimination against homosexuals violate the separation of church and state? Why, because the most virulent homophobes cite the Bible as their basis for opposing gays and lesbians? You might as well argue that the law against murder should be repealed, since "Thou shalt not kill" is of the 10 Commandments, so is unconstitutional. The truth is: homophobia for most Americans has nothing to do with religion. If you think I'm wrong, just watch some television. How often do you see a heterosexual character in a TV sitcom being mistaken for a homosexual? The character never likes to be thought of as gay, you'll notice, and he (it's almost always a male character) always works to prove that he's not gay. How often do you see a female character walk into a room and find two men hugging? She gives them a look like they're fondling small children. Meanwhile, the men have panicked looks on their faces and quickly separate. Surely you've seen a male character wanting to joke that he's too self-conscious about his looks or too emotionally sensitive, so he speaks in a higher voice and with a slight lisp, bends his wrist a little and says, "Don't I look fabulous?" Do you think the actors and the writers of these shows are all a bunch of right-wing Christians? Of course not. They just happen to share a common American attitude towards homosexuality.

Other signs of what I'll call secular homophobia include the phenomenon of lesbianism as eroticism (I wonder how many of those lesbians are really lesbians) and the acceptance of asexual gays and lesbians (Ellen DeGeneres, Richard Simmons), as long as they don't publicly talk about their love lives.

My wife says that someday homophobia will be condemned like racism is today. She says shows like Will & Grace will be as offensive as Amos & Andy. Perhaps even the word "homosexual" might become like the word "Negro," once acceptable but now only less offensive than the other "n" word because it sounds so anachronistic. I hope she's right.

In the meantime, we need to be smarter about how we oppose any attempt to constitutionally ban gay marriage. Trying to use the First Amendment will get us nowhere. All kinds of laws have their roots in religious values. Why is polygamy outlawed? Religion. Why was Prohibition passed? Religion. And most non-religious people agree with those laws, saying they feel those activities are wrong or bad for society anyway. Besides, the whole point of amending the Constitution is that it relieves one of having to worry about Constitutionality. If it's amended to read that marriage is only between a man and a woman, then what becomes unconstitutional are the same-sex union laws!

We need to focus on the fact that (apart from Prohibition, which when reading the Constitution seems so out of place) all amendments to the Constitution protect existing rights or establish new rights. An amendment to ban gay marriage would be this nation's taking an unprecedented step to deny rights. It's downright un-American! Most Americans feel more uncomfortable with a concerted effort to constitutionally deny rights to Americans than they do with homosexuality. In the long term, we need to continue our fight against homophobia and intolerance in general. To that end, maybe even shows like Will & Grace, despite their flaws, will make a positive impact. But in the short term, I think we should focus on rallying the support of average Americans who don't want to deny basic rights and privileges to their fellow law-abiding citizens, no matter who they are.

If we do need to use the Constitution as a defense, instead of talking about the First Amendment, let's talk about the Fourteenth Amendment. The Fourteenth Amendment says that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Granted, another amendment to the Constitution would create an exception, of sorts, to this rule, but it's a much firmer principle on which to stand.

The Fourteenth Amendment was enacted after the Civil War in order to protect black Americans. As a way of getting around this, southern states created the Jim Crow system, which was supposed to be "separate but equal." Until 1954 the Supreme Court believed in the "equal" part and so Jim Crow laws were not considered to be in violation of the Fourteenth Amendment. If our government now moves to ban same-sex marriage, it will be creating a Jim Crow world for gay and lesbian Americans. It will abridge their privileges, in the language of the Constitution, thus denying them equal protection under the law. Today in the US, the only citizens whose rights are denied them are convicted criminals and ex-felons (though the right to marry is not among those taken away). Will we really stand by and watch gays and lesbians be added to this list?

Most white Americans in the 1960s, even if they didn't know any black people or want them living in their neighborhoods, were appalled by Jim Crow and the repression of blacks (particularly in the South). Why? Because Americans at heart believe we should all benefit from the equal protection of the law. Similarly, I believe that most heterosexual Americans today would be appalled by any attempt to make second-class citizens out of gays and lesbians, even if they (think they) don't know any or want them living in their neighborhoods.

Honestly, if I didn't believe this, given how our government is becoming infested with these crazy conservatives, I don't think I could go on being an American. I really don't want to be Canadian (I hate taxes almost as much as I hate restrictions on personal liberties), but I'd rather pay high taxes than live in a country that would amend its Constitution in order to deny a basic right like marriage to any of its citizens.


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