[vinnomot] Humanism and Law: (Intro); Constitution and the Religion

 

Religion and the Constitution

 

Introductory module
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While no one has been burned at the stake recently for their spiritual and religious  beliefs as in the 16th Century Religious Wars between Western Christians sects of Roman Catholics and Protestants, or under the fascist Christian Inquisition (when millions of European women and men were burnt at stakes as witches and heretics - a virtual genocide of European race by the Christian Church); the Christian religious civil wars seem, thankfully a thing of the past, at least in Europe and Europeanized countries which are mostly sophisticated, democratic nations today, thanks to heroic struggle and sacrifice of the European humanists, secularists and liberals. Although it is not evident whether the Christian powers had made their peace on the secret wars against one another or against the non-Christian countries of the world. It is plain that controversies surrounding religion and its place in modern society still loom large in the minds of many people, especially in Islamic countries of Asia and Africa. Pakistan, Iran, Saudi Arabia , Malaysia, Indonesia etc. are still in the grip of Islamic terrorism, Mullah fascism , fundamentalism and extremism. This is a problem that confronts American Christian society as well because of extreme Christian fundamentalist and extremist attitude of President G W Bush and his Christian cohorts. (Individually, the American citizens are intelligent, educated, humane, socially responsible, ethical and helping; however, in their collective political capacity, Americans have proved to be a nations of extremely emotional and exploitable Christian imbeciles, cretins and mass-murderers: see their Christian genocides mass-murders in Vietnam, Cambodia, Laos etc; and see their stupidity of choosing an imbecile and liar Bush as president who lied and cheated the whole American nation about Iraqi WMDs, got elected because of vote-counting frauds, the second time with shameless support of the Christian priests and Bishops, despite his lies and mass-murdered and maimed millions of Iraqis and thousands of Americans in Iraq, and continues to do so with the help of the British fascist collaboration on the name of the democracy and the good name of the American nation ! What a SHAME !) Although the First Amendment of the US Constitution guarantees « Separation of State and Church », the imbecile Christian Methodist, former Cocaine addict President Bush, continues to destroy the soul of American Constitution under his very Christian « Rigged-Election-Counting-Democracy » persidency. Therefore the question remains about the role of religion in the public sphere, or is it not an activity that this nation's constitution, laws and customs have properly relegated to the private sphere? Any response to this query seems to raise more questions than it answers. Just what does separation of church and state mean? Where do we draw the line between permitting religious practices and maintaining social order? What are the precise definitions and limits of the Religious freedom or liberty (wait for a future discussion on this topic). How exactly does the U.S. Constitution or other constitutions of the world define and protect religious freedom and freedom from religion anyway? These concerns have engendered much confusion and controversy throughout the history of our USA and other countries of the world . Informed persons, including justices of the United States Supreme Court, have heatedly discussed as to how one should answer these thorny questions. This study will allow the participants to enter this fascinating area of Constitutional law to become better acquainted with many of the quandaries facing the courts and the nation. It is designed not only to give the participant an introduction into the area of religious-legal issues, but it will also help one develop the tools needed to approach the Constitution in the same way as judges do when they craft their ruling in religious disputes. To that end, participant will become intimately acquainted with the historical meaning of the Establishment and Free Exercise Clauses and other provisions of the Constitution that from time to time touch upon the concerns of religious freedom. While our main focus will be with the Supreme Court and its historical role in adjudicating this troubled area of the law, there will also be forays into other related issues such as what the Founding Fathers intended for religious freedom when they drafted the First Amendment. For people living in Pakistan, India, Bangladesh etc. participants should take this discussion as a comparative study. Finally, this study will provide a justification for supporting the principle of religion/state separation and a narrower interpretation of the Free Exercise Clause in USA and similar articles in various other constitutions. While quizzes (a set of questions designed for entertainment) and other exercises will be based upon non-controversial, "neutral" knowledge that informed commentators on all sides of the debate can accept, the author will clearly stake out a position that supports religion/state separation and a more equitable view of religious freedom generally. Before we go further it would be helpful to give a brief description of the Constitutional principles and provisions we will be examining. While the Free Speech Clause, Equal Protection Clause of the US Constitution, and the ban against religious oaths for holding political office are sometimes utilized as the basis for a religious legal challenge, the two most important clauses that pertain to religion and the law can be found in the First Amendment of the Bill of Rights. The Free Exercise Clause protects individuals from government persecution based on hostility to their religious beliefs, including the right not to believe. This clause provides the basic protection for individuals to think, speak, and even act upon their religious tenets or lack thereof. The Establishment Clause goes a step further, prohibiting government favoritism towards any religious sect or group, at the very least, and government endorsement of religion generally. This clause is supposed to drive a wedge between government and religion and is usually thought of as the basis for the doctrine of religion/state separation, though there is little agreement upon what exactly this principle means. The combined effect of these two clauses is intended to promote government neutrality towards religion. However, the two clauses are often in tension and have the potential to conflict with each other when they are interpreted too broadly. When does religious freedom violate religion/state separation? When does religion /state separation intrude upon religious freedom? For example, does exempting a religious pacifist from military duty further religious freedom? Or should this dispensation be regarded as special treatment to the religious and thus be viewed as a violation of religion /state separation? Are we violating religion /state separation when we allow a teacher to lead a prayer in a public classroom? Or would we be denying religious freedom for the teacher if we prohibited her from doing so? Where does the religious freedom of her students figure into all this? In the Basic parts of this study, we will closely examine the origins of the Free Exercise Clause and explore how the legal definition of religious freedom has changed throughout the history of this nation. The first part of the Comprehensive section of this study will, in similar fashion, explore the origin, history, and current status of the Establishment Clause. Both parts  will explore the effect that incorporation of the Bill of Rights had on the First Amendment. In the second discussion we will explicitly discuss as to how both of these clauses should be interpreted. Specifically, it will be argued that the doctrine of separation of religion/state is the best approach to employ in determining the operation of these clauses for both practical and normative reasons. This part will examine five different arguments against the separation doctrine and then respond by explaining the various shortcomings and flaws of the accommodationist or nonpreferentialist viewpoint. In the third and final part of the Comprehensive section we will show the implications of the separationist viewpoint upon such contentious issues as the evolution/creationist debate, prayer in public schools, ceremonial desmic, funding of religious schools, general law-making, and religious exemptions. While this study will support the separationist viewpoint, it will also make an unorthodox defense of that doctrine that most separationists might initially reject. Thomas Jefferson's call for a "wall" of separation between and religion/state (i.e. between religion and the government), in his celebrated letter to the Danbury Baptists, is often considered by many separationists to be the last word on the subject. Even within the separationist camp, many supported the doctrine not so much to protect government from religion, but to protect religion from government. When Roger Williams established Rhode Island to be a haven against religious intolerance, he was doing so not to make the new colony a secular state, but to keep religion from being oppressed by the religiously-controlled governments of the time, particularly Puritan Massachusetts. We will also examine the existence of state sponsored churches and laws against blasphemy and religious oaths for elective office, which continued in existence long after the US First Amendment and the rest of the Bill of Rights had been ratified. It is expected upon completion of the Comprehensive section  that the participant will be able to critically assess the many controversies involving religious freedom and the Constitution (even in their own countries) -- including such current hot-button issues as vouchers for religious schools and the inclusion of "under God" in the Pledge of Allegiance -- and be able to come to an informed, objective opinion on how to resolve these intractable problems. In addition to these issues, this study will examine the Constitutionality of publicly funded Christmas displays, court-compelled religious exemptions, faith healers' refusal of medical treatment, school prayer, moments of silence, legislative chaplains, ceremonial desmic, and other related issues such as reproductive freedom and religious bigotry. It is hoped that the participant will come away from this study with a better understanding of why disputes about various issues of religious freedom are treated in different ways. It will also help the participant become familiar with the many arguments used to support and justify opposing positions so that the informed observer can make up his or her own mind as to whether the courts made the correct decision on a specific religious controversy.   There is likely to be a separate article on Constitution and Religion in Pakistan; Bangladeshi Indian and other countries' participants should prepare an article on the Constitution-state-religion relationship of their countries; guidelines my be available, if needed. Send queries to :  <humanists_international@yahoo.com>	Article III, Section 1, Constitution of the United States: The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The following is a simple primer on how the United States Supreme Court operates within the structure of the federal and state court system. Each state has it own court system with various levels of trial and appeals court. Trial courts generally focus on the evidence of a case. Courts of appeal focus on whether a lower court ruling followed the correct interpretation of the law, but generally do not review the facts of the case to see if the jury or judge made the correct assessment of the evidence. All fifty states have their own "supreme court," though they often call their highest court by a different name. In New York State, for example, the lowest state trial courts are confusingly called supreme courts and the highest court is called the Court of Appeals. The federal system has it own court system beginning with 94 district courts scattered across the nation, which are trial courts that act as the intake mechanism for new cases. The next layer includes twelve regional Courts of Appeals (and a special federal circuit) that hear appeals from the district courts and are made up of three-person panels. In addition, there are various specialized courts such as military, bankruptcy, administrative, and tax courts that all belong to the federal system. On top of this pyramid sits the U.S. Supreme Court. The High Court will generally only hear cases that have already been ruled on from its own federal appeals courts or the states' highest courts, though sometimes it has allowed a case to "leap-frog" intermediate courts to get to the highest tribunal. Unlike many appeals courts on the state and federal level, the Supreme Court has the discretion to choose which cases to hear. Of the 9000 or so writs of certiorari they receive annually, the Court usually decides to accept and hear no more than 90 or so petitions for full argument. The Court currently has nine members, though the Constitution does not place any limits on how many positions may be created. At one point Congress authorized as few as five and as many as eleven justices. President Franklin Roosevelt attempted to pack the Court during the Great Depression so that it would be more amenable to his interventionist economic policies, but Congress refused to act on his request, which would have increased the size of the Court to sixteen members! Decisions are made by a majority of the Court, which would be five members or more of the current membership. The members of the majority are referred to as "the Court" when they issue a ruling. Those who disagree with the judgment of the Court will often write an opinion called a dissent. Other justices may join that dissent and/or write their own dissenting opinions. A concurring opinion occurs when a justice agrees with the judgment of the Court, but disagrees with the reasoning put forward by the majority. A plurality occurs when most, but not a majority of justices, agree on a judgment and the basis for that judgment. Often a concurring decision will help the plurality obtain a majority, but such cases are not considered controlling on lower courts because the majority does not agree on the reasoning behind their decision. Some decisions are especially splintered, making it very difficult for lower courts to discern the logic of the Supreme Court's decisions and to make their own rulings. For example, Casey v. Planned Parenthood concerned (among other things) whether or not a minor was required to seek parental permission before obtaining an abortion. The justices split into three camps: four justices wanted to overturn Roe v. Wade and uphold the regulation, two wanted to uphold Roe and strike down the regulation, and three wanted to uphold both Roe and the regulation. Final tally: a woman's general right to an abortion was protected by a 5-4 margin, but the state could regulate a Minor's access to abortion by a 7-2 margin. Supreme Court justices, like all federal judges, are nominated by the President and have to be confirmed by a majority of the U.S. Senate. Their appointment is for life, or until they retire or resign. Like other federal officials, justices and federal lower court judges can also be removed through the impeachment process. While the Chief Justice has one vote just like the other eight associate justices, he does have more informal power than his colleagues because he has the privilege of assigning an opinion, when he is in the majority, to a justice within that majority. He also is considered the head of the entire federal court system and sits as the formal, but relatively powerless, presiding officer during impeachment trials of the president, as we saw with President Clinton. Federal Constitution of Pakistan and Union Constitution in Indian and the national Constitution of Bangladesh, for example, treat the Religion-State relationship in a different way. According to the constitution, Islam is the religion of state in Pakistan and Bangladesh , while Indian state is secular. Similarly all countries have different relationships in their constitutions.

 

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