By Andrew L. Seidel
Staff Attorney and Constitutional Consultant
Freedom From Religion Foundation
I'm proud to be an American. This is not some blind, jingoistic, nationalist pride—it's not my country right or wrong (I only adopt that attitude during the World Cup and the Olympics). I'm proud because this nation, despite its faults and missteps, was the first to separate state and church. That "wall of separation" as Jefferson put it, is an American original.
This is not to say the idea is necessarily an American invention, but it was first implemented in the "American Experiment," as Madison put it. Until then, no other nation had sought to so full protect the ability of its citizens to think freely. No people had sought to divorce the terrible power religion holds over the supposed afterlife, from the power government has in everyday life. Until then, the freedom of thought and even the freedom of religion, could never have truly existed.
There can never be true freedom of religion, without a government that is free from religion. Daniel Carroll, a Catholic representative to the Constitutional Convention from Maryland, put it best when he said that, "the rights of conscience will little bear the lightest touch of the governmental hand." Whenever the government puts the weight of every citizen—"We the people"—behind one particular religion, it violates the rights of conscience of us all. The First Amendment is designed to protect those rights—to "unshackle the conscience from persecuting laws."
So this Fourth I will do what Jefferson did when he wrote his famous letter to the Danbury Baptists on New Year's Day, 1802. I will "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 & State."
No matter what this country has gotten wrong over the years, this Fourth, we can all be proud of the country that invented the separation of state and church.
This is a guest post by FFRF Staff Attorney Andrew Seidel at the Friendly Atheist Blog.
The long overdue celebration over the decision that makes gay marriage just marriage overshadowed an important piece of news for the secular movement. On June 25, the ACLU announced that it would no longer support the Religious Freedom Restoration Act—the federal law Hobby Lobby used to successfully challenge the contraception provisions of the Affordable Care Act.
FFRF has been opposed to this law for some time because, as Ms. Melling writing for the ACLU put it, "religious liberty doesn't mean the right to discriminate or to impose one's views on others." In April, FFRF asked Connecticut Governor Dannel Malloy and Virginia Governor Terry McAuliffe, both of whom expressed opposition to Indiana's law, to repeal their own state-RFRAs. We even ran ads in the New York Times asking for a repeal of the federal RFRA. And until Indiana tried to pass a particularly malicious RFRA and companies like SalesForce, Apple, GenCon, and even the NCAA joined the fight, FFRF was waging a lonely battle. There were a few notable exceptions, such as Katha Pollitt, writing for The Nation, and the groups that signed on to our Hobby Lobby brief. [Ms. Pollitt sits on FFRF's honorary board.] Our brief to the Supreme Court, singled out by Peabody Award-winng Supreme Court website SCOTUSblog as a "bold challenge," was the only one of more than 80 in the Hobby Lobby case to argue that RFRA is unconstitutional.
How important is this? Well, very. One popular counterargument FFRF has faced in its battle, which is becoming less lonely by the day, is that when RFRA was passed, everyone, from the Religious Right to the ACLU, supported it. And to this day, everyone, from the Baptist Joint Committee, to the religious ministry/law firm Alliance Defending Freedom, to the media highlights that fact. They all point to RFRA as a miracle that crossed party and religious divides. The ACLU's support of RFRA gives, or, as we must now say gave, these laws credence.
Undercutting this popular argument in favor of RFRAs is important. But perhaps the most important impact of this announcement will be that the ACLU's courageous stand will encourage other secular and human rights groups to follow suit. This could be a tipping point.
And isn't it time? These insidious laws are one of two things. They are either completely superfluous because our First Amendment already protects religious freedom, or, a legal justification for discrimination. The First Amendment already protects the freedom of religion and, under its mantle, every species of religion has flourished in this country. RFRAs are therefore unnecessary, unless they have another purpose. The Religious Right is now using these laws to justify discrimination in the name of a god. They make that argument over and over again. Tony Perkins, president of the Family Research Council, has been explicit. He argues that these laws allow discrimination in the name of religious belief, citing the example of Baronnelle Stutzman, the Christian who refused to provide flowers for a gay wedding. But even if no court ever buys the "religious freedom as a defense to discrimination" argument, why would we keep laws that justify discrimination—especially when the First Amendment protects what these laws purport to defend?
The ACLU is calling for "Congress to amend the RFRA so that it cannot be used as a defense for discrimination." But we don't think that goes far enough to protect citizens. Unlike the First Amendment, the terms of RFRA only give protection to religion and therefore religious citizens. As of now, that protection is not extended to nonreligious citizens (who now make up 23% of the population). Favoring religion over nonreligion, which the Supreme Court has repeatedly said is unconstitutional, will always be problematic. That's why FFRF has long been arguing that RFRA is unconstitutional and should be either repealed or, like the bans on gay marriage, struck down in federal court.
"As Oklahoma’s highest law enforcement officer you ought to be saying 'good riddance' to the bad rubbish this monument represents, not promising to repeal part of Oklahoma’s law."
By Andrew L. Seidel
Freedom From Religion Foundation
Dear Mr. Pruitt:
We've tangled several times before. Once regarding a Christian men's club using Oklahoma public schools to distribute their particular version of the bible, an illegal act that you publicly defended. And then regarding your demand to see documents relating to the IRS and FFRF settling a lawsuit that are publicly available on FFRF's website, www.ffrf.org. Perhaps you were so upset by the news that the IRS would enforce the rules by which it is governed that you missed all the documents. If so, here they are.
I write this letter to correct yet another misunderstanding, this time regarding the Ten Commandments. After the Oklahoma Supreme Court declared the decalogue monument on capitol grounds unconstitutional, you said, "Quite simply, the Oklahoma Supreme Court got it wrong. The court completely ignored the profound historical impact of the Ten Commandments on the foundation of Western law."
That assertion is indefensible. There is not a single legal principle that is either unique or original to the Ten Commandments that significantly influenced American law.
First, let's identify which set of Ten Commandments that were allegedly part of our foundation. Is it the set in Exodus 20 or Exodus 34? Or perhaps it's the sets in Deuteronomy 5 or Deuteronomy 27? For the sake of argument, I'll assume it's the set on the Oklahoma capitol lawn.
This is a big assumption because, as anyone who's familiar with the bible will realize, the wording on the capitol monument is heavily edited. The monument's precepts appear to come from Exodus 20, but apparently the original version was too barbaric (or perhaps the monument authors simply know better than god.) Either way, the monument strays heavily from the original.
For instance, the monument leaves out some integral language from the second commandment—the prohibition on graven images. The original includes, "for I, the Lord your God, am a jealous God, punishing the children for the sin of the parents to the third and fourth generation..." Please tell me, Mr. Pruitt, is punishing innocent children, grandchildren, and great-grandchildren for the crimes of their parents what you meant by "foundation of Western law?"
If not, then perhaps you were referring to the implicit blessing of that most holy institution, slavery, which is referenced in both the fourth and tenth commandments (but is again omitted from or altered on this monument)? The tenth commandment also treats women as property, lumping them in with cattle and slaves, something the monument authors did not think worth changing.
Punishing innocent children, blessing slavery, denigrating women—as Oklahoma's highest law enforcement officer you ought to be saying "good riddance" to the bad rubbish this monument represents, not promising to repeal part of Oklahoma's law.
Surely you can't mean that the first four commandments, which have nothing to do with morality and actually prohibit the free exercise of religion, are the basis of western law? Nor could you mean that prohibitions on coveting—commandments 9 and 10 on the monument—are the foundation of western law because they amount to criminalizing thought. And as you must know, freedom of thought is protected absolutely under our First Amendment.
The process of elimination tells me that you must be referring to the prohibitions on murder, theft, lying, and adultery. But these commandments are not original or unique to Judeo-Christianity. These are universal, human principles that virtually every successful society has implemented. Even the Ten Commandments were not telling the Israelites something new. Surely you aren't contending that the chosen people thought murder, theft, and lying perfectly acceptable before a burning bush told them otherwise?
If you are arguing that your particular brand of religion is responsible for the universal prohibitions of these rather obvious wrongs, then your religiously motivated arrogance has gotten the better of you.
Which of the Ten Commandments are, as you claimed, the basis of Western law? I eagerly await your response.