Why We Separate Church And State In One Easy Lesson

From the Richmond Times-Dispatch, via Pandagon, comes an article with the delightful title 'ACLU files petition on behalf of witch':

"The American Civil Liberties Union of Virginia has filed a petition on behalf of Cynthia Simpson, a witch of the Wiccan faith, seeking to reverse a ruling that upheld Chesterfield County's decision to bar her from giving the invocation at Board of Supervisors meetings. (...)

In 2002, Simpson, who calls herself a witch, asked to be placed on the list of religious leaders invited to deliver the invocation at county board meetings. She later received a letter from Chesterfield's county attorney that said leaders on the list are restricted to those within the Judeo-Christian faith.

Simpson filed suit, backed by the American Civil Liberties Union of Virginia and Americans United for Separation of Church and State. One year later, the Richmond U.S. District Court ruled that the county violated the constitutional mandate for separation of church and state and discriminated against minority religions.

Chesterfield appealed the court's decision.

This month, a three-judge panel of the 4th Circuit ruled Chesterfield's policy fits within the Supreme Court's requirements for legislative prayer." (emphases added.)

Not being a lawyer, I am not particularly clear on the relation between the first amendment of the United States Constitution and the activities of Chesterfield County, Virginia. So I will not make any specifically legal arguments here. What I will say is this: one very obvious reason to separate church and state is that unless we do so, we will either end up allowing every religion to entangle itself with the state, or we will end up picking some subset of religions to allow in, while excluding others. The first case is probably not what most religious people want: many Christians would not be at all happy about a Wiccan giving the opening prayer at government meetings, and even I, who have no problem with the versions of Wicca that I've encountered (other than disbelief), would not be thrilled to have Satanists or members of Aum Shinrikio leading my elected representatives in prayer. And I feel this way despite not being an adherent of any religion: back when I was, and when I therefore cared deeply about prayer, I would have minded a lot more.

I would also have minded the implicit assumption that anyone who claims to represent any religion, however bizarre, could deliver a prayer in which adherents of any other religion would wish to join. That's true of a lot of religions, and when I was a Christian I happily joined in prayers led by Muslims, Jews, and all sorts of people; but it is not true of all of them.

The alternative, as I said, is to have the government restrict the religions it will allow itself to become entangled with. This is what Chesterfield County seems to have done. The actual letter sent to Cynthia Simmons includes the following passage:

"Chesterfield's non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition. Based upon our review of Wicca, it is neo-pagan and invokes polytheistic, pre-Christian deities. Accordingly, we cannot honor your request to be included on the list of religious leaders that are invited to provide invocations at the meetings of the Board of Supervisors."

This is not an appropriate thing for a government that purports to represent all its citizens to be doing. It is not the role of government to decide the status of "polytheistic, pre-Christian deities." Nor, I would have thought, is this something Christians should want governments to do: Christians spent centuries being tortured and killed because they did not hold the beliefs their governments favored, and our country was founded by Christians who were not permitted by their government to worship as they believed they should. If Christians are really worried about being 'persecuted', they should hold to the principle of the separation of church and state, since if history teaches anything, it's that no one should count on remaining in the majority forever.

Moreover, it's not as though Christianity cannot be practiced without things like Christian opening prayers at County Board of Supervisors meetings. As I said in a previous comment thread, when school prayer first became an issue, I was mystified by the claim that liberals were trying to ban prayer in the schools, since I had for years had a downright voluble relationship with God while in school, despite the absence of organized prayers. No one had noticed my frequent conversations with God, nor would anyone have been able to ban them had they wanted to, since they were silent and unobservable, at least to humans. And according to the Bible, it's not frequent public appeals to God that count; it's whether you keep Him in your heart, where only you and He can see.

If we're going to allow the state to endorse 'religion', we must either be prepared to endorse all religions, or to have the state pick certain specific religions to endorse. In the first case, we will have to accept prayers by Wiccans. In the second, we will have to give up any pretense that the state is neutral between religions, or that it's not endorsing some specific religion, but 'faith' in general. And we will give up our best protection against the day when our religion, whatever it may be, becomes the religion of an unpopular minority. That protection is the separation of church and state: the view that while individual politicians can and should consider their consciences, and thus necessarily their religious views, in deciding what to do, they should never seek to establish one religion as the official religion of government. Individuals, not governments, should decide which religion they should accept, and to think otherwise contradicts both the founding principles of this country and the spirit of the specific religion that Chesterfield County is trying to make official. Christianity asks individual believers to come to Christ. It distinguishes what we owe to Caesar and what we owe to God, and asks us to do the same. If the Christians of Chesterfield County are not moved by the principles our country was founded on, they should at least do Christ the courtesy of taking Him at His word.

Comments

[rilkefan]

"within the Judeo-Christian faith(sing.)"

What's up with that? Am I not going to hell as a nominal Jew according to most Christian doctrines? Don't Catholics worship between one and three more entities than many other Christians? Is Gnosticism "within the J-C faith"?

[rilkefan]

Isn't there a war for souls going on?

[CharleyCarp]

R: It's a shorthand. Chesterfield County allows Islamic invocations, on the theory that JC faith includes anyone following the God of Abraham. I suppose they wouldn't allow either a Buddhist or a Hindu, but probably none have asked.

[Bernard Yomtov]

Exactly.

And anticipating an argument, let me say that members of the Chesterfield County Board who wish to seek divine guidance in their deliberations are free to pray in any fashion they wish before coming to the meeting. A minyan is not necessary.

[Opus]

Edward, great post. In particular, I appreciate your putting forth the two salient points so clearly: if you allow one religion to have a place in civil law, you get into a mess re: all the others, and if you want to practice Christianity, you can do so -- in the way Christ intended -- without making it a civil matter.

[Jay C]

Although Chesterfield County's denial-of-recognition in this particular case deals with Wicca (whhich, with all due respect, IS a "fringe" religion - which shouldn't vitiate the basic principle) - should this case go on to a higher court, I have the uncomfortable feeling that it is going to end up as another opportunity for the "Religious Right" to get their donor-base and media-machine stoked up into a froth of righteous rage against being "suppressed" and "discriminated against" by "godless" liberals/courts, etc. (which anger the inclusion of their pet bogeyman, the ACLU, in the affair can only fan). The fact that the case hinges on the religious legitimacy of "witches" is just icing on the cake. And, IMO it will be bitter one for anyone on the progressive/secular side of the political spectrum to choke down, since I think it will be a sure loser, in the public mind, if not in court.
Hilzoy, I think you nail the issue exactly: to avoid religious discrimination in the public sphere, must "Government" either a) recognize all religions or b) recognize none? Option a), if enacted into mandated practice, does have, as you point out, its own problems, even if only those of offending some people (but that is not a simple issue when public attitudes are involved); whereas option b) would lead, if carried to its logical conclusion, the complete "secularization" of public governance: i.e., exactly the "godless" horrorshow the Religious Right and their enablers have been fulminating against for years.
There is, of course, an option c), which is to allow some sort of "official" discrimination of the sort Chesterfield County seems to want to impose - but that is, again, a bad choice; since once such discrimination is allowed; where does that "slippery slope" lead (and I think we know the answer to that)?
A very depressing set of choices here: I am not a lawyer, either, so I would like to hear from the better-qualified on this issue: is there another answer I have not outlined?
I hope so, since I can see nothing but trouble ahead for all sides if this issues gets, say up to SCOTUS. Bad trouble.

[Tad Brennan]

Opus--

Although don't understand all the metaphysics, I have been assuming that Hilzoy and Edward are not simply different persons of the same god.

[Jay C]

Addenda to my post above:
Opus: post is by Hilzoy, not Edward_
and Hilzoy: what happened to the author-names formerly heading the main posts? We seem to have reverted to the old system. (Although I knew it was your post by the cogency of the remarks).
And CC: you're right: there must not be very many Hindu-Indians living in Chesterfield County - since their religion is most definitely "polytheistic and pre-Christian", they would be seem to be s.o.l. for an invite as well (and Hinduism has a lot more adherents than Wicca!).

[votermom]

As I observed elsewhere, by their rules they should allow a Satanist to lead the prayer, since that clearly falls within the Judeo-Christian tradition.

[hilzoy]

As I think I said in some other comment thread, we are all emanations of Moe.

And I think the answer to the godless horror show problem is just: in most religions, it is quite possible to invoke the deity in the privacy of one's own heart.

About the author headings: everyone else seemed to have dropped it, so I started getting sloppy. Should I revert to it?

[John Thullen]

A bewitching post.

I think my problem, at root, with Christianity and Islam being invoked from within the institutions of government is a discomfort with the whole "gathering of souls" concept.

I note that I have no strong opinions one way or the other with Christmas creches and the like on government property, but I think something more pernicious is going on today. I realize, too, that what we are witnessing to some extent is a reaction against moves to remove things like creches, but I think now something bad this way comes.

Note too that I would find it charming if the Good Witch of the North descended in a bubble to cast a spell on certain government bodies to raise taxes to pay for, say, Iraq expenses. And if in the bargain a house fell from the sky and all that was left were the ruby slippers of Bush and Delay and company, the world would be in color again. I would impose a death tax on rubies, at least, and place the slippers in the Social Security trust fund so that they could be borrowed to pay for Iraq and restore cuts in Medicaid.

Harpers Magazine, I think, has a article this month about some of our big-haired brethren in Colorado Springs, one of whom claims to have caused ten or so "witches" to sell their homes and move after picketing by his parishioners. And now, excrutiatingly,
there are reports of Jews being harrassed by Christians at the Air Force Academy.

I'm going to send a squadron of flying monkeys to transport these people to a land where the pox is upon them.

Personally, I believe the opening scenes of Macbeth should henceforth be recited at every government function.

[John Thullen]

Hilzoy, no, keep the author names at the end. I like the suspense.

Plus, it's funny when someone gets confused, but then comments that they could tell it was you and not Edward because of the cogency of the post. ;)

Just a question: If Opus gets Hilzoy and Edward confused, what does this mean vis a vis marriage proposals?

Sorry, one joke too far.

[John Thullen]

"An" article, in my first comment.

[carpeicthus]

This country wasn't founded by Wiccans!!!!!! George Washington wasn't praying to Zoroaster as he crossed the Potomac!!! We need to be true to our roots, which is why I propose that all American elected officials must be Deists. And Freemasons, but that's already true.

It sort of amuses me to see Catholics in particular devote themselves to eroding the church-state wall. Be careful what you wish for, guys.

[notyou]

Isn't this settled (not this particular case, but in general)? Both houses of Congress begin their days with Judeo-Christian invocations, as, I assume, do all the state legislatures.

Marsh v. Chambers seems to be the Supreme Court's most recent opinion on the matter ("To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."). That was 1983. I don't think the current crew will be inclined to change the court's mind.

[Tad Brennan]

Notyou--

But Marsh v. Chambers (or at least the part you quote) would license the Wiccan invocation as well, and would not give any grounds for the invidious exclusan of the Wiccan applicant. To the extent that the Federal ruling is binding on the states (and some radicals say that the 1A is not incorporated against the states), this would imply that the Chesterfield Co. people have to put the witch into the pitching rotation.

If that outcome strikes people as outrageous, then I suppose they ought to revisit how happy they are with M v. C's vague references to "divine guidance". I don't think there'll be any wiggle room to be gained by the clause "widely held"--even though Wiccans are a tiny minority,there are enough to meet that clause, and the court did not lay down a percentage test. And as Jay C noted, Hinduism is nearly as "widely held" as anything Judeo-Christian.

[praktike]

I, for one, welcome our new Wiccan overlords.

[Anarch]

And according to the Bible, it's not frequent public appeals to God that count; it's whether you keep Him in your heart, where only you and He can see.

But, whatever they might profess, not according to their Christianity.

[err]

Marsh v. Chambers:

"Held:

The Nebraska Legislature's chaplaincy practice does not violate the Establishment Clause. Pp. 786-795.

(a) The practice of opening sessions of Congress with prayer has continued without interruption for almost 200 years ever since the First Congress drafted the First Amendment, and a similar practice has been followed for more than a century in Nebraska and many other states. While historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the Establishment Clause to mean but also on how they thought that Clause applied to the chaplaincy practice authorized by the First Congress. In applying the First Amendment to the states through the Fourteenth Amendment, it would be incongruous to interpret the Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government. In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. Pp. 786-792.

(b) Weighed against the historical background, the facts that a clergyman of only one denomination has been selected by the Nebraska Legislature [463 U.S. 783, 784] for 16 years, that the chaplain is paid at public expense, and that the prayers are in the Judeo-Christian tradition do not serve to invalidate Nebraska's practice. Pp. 792-795.

675 F.2d 228, reversed."

[Opus]

Ack. Sorry, hilzoy! This does complicate my marriage proposal, doesn't it? Paging Proctor Santorum!

[nous_athanatos]

I posted this earlier in the Why They Fight thread, but I think it bears repeating. I like the way Jurgen Habermas addresses this issue in Philosophy in a Time of Terror:

Within a democratic community whose citizens reciprocally grant one another equal rights, no room is left for an authority allowed to one-sidedly determine the boundaries of what is to be tolerated. On the basis of the citizens' equal rights and reciprocal respect for each other, nobody possesses the privilege of setting the boundaries of tolerance from the viewpoint of their own preferences and value-orientations. Certainly, to tolerate other people's beliefs without accepting their truth, and to tolerate other ways of life without appreciating the intrinsic value as we do with regard to our own, requires a common standard. In the case of a democratic community, this common value basis is found in the principles of the constitution. (Borradori, 40-41)

In the same book Jacques Derrida says similar things about the way in which 'tolerance' is (ab)used by fundamentalists:

Tolerance is actually the opposite of hospitality. Or at least its limit. If I think I am being hospitable because I am tolerant, it is because I wish to limit my welcome, to retain power and maintain control over the limits of my "home," my sovereignty, my "I can" (my territory, my house, my language, my culture, my religion, and so on)....Tolerance is a conditional, circumspect, careful hospitality. (Borradori, 128-129)

I was surprised to see Habermas and Derrida so much in agreement on anything. But there it is. Tolerance, at least as practiced without broad pluralism, devolves into charity very quickly, and it seems that charity is in very short supply these days.

Plain and simple, the religious right talks about tolerance a lot, but other than a few groups like the Rutherford Institute, it seems that most evangelical legislative and legal groups work exclusively to maintain a space for their own religion (and, of necessity, Jewish groups as well) in the public sphere while working to close this space for any other group. Walker Percy was right, you can tell more about someone from what they do than from what they say they believe.

[Phil]

Each time that the issue of institutionally-endorsed and/or government-led school prayer -- or its corrolaries, at football games, graduations, city council meetings, and the like -- arises, and the question of nonbelievers or believers of other faiths is brought up, the Christians like to tell everyone that if someone objects or doesn't worship the same deity or any deity at all, they can just sit there quietly and respectfully and listen.

Yet whenever someone from a nontraditional faith, or an atheist, or anyone not Jewish, Christian or Muslim wants to be treated like everyone else and given the same access and the same opportunity, the same thing happens. Five years ago, it was the religious speakers being brought into the Virginia schools to talk to students about their religions; one and only one religious representative caused the schools to require children to get a permission slip. It was the representative from the Church of Satan. (Which, notably, does not actually worship the Christian concept of Satan.) Children did not have to get parents' permission to hear from any other religions.

Then, we have the handful of instances over the past couple of years in which atheists and/or humanists have been invited to give invocations prior to civic events, and Christians in the audience have attempted to silence them, or, rather than exhibit the maturity to "sit there quietly and respectfully and listen," have walked out in protest.

Now we get this. And this. And it just gets worse and worse and worse, every time.

[Bernard Yomtov]

nous athanos,

Good point. Note that George Washington said much the same thing in a 1790 letter to Touro Synagogue in Newport, the first synagogue in the United States.

All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of once class of people, that another enjoyed the exercise of their inherent national gifts.

[kenB]

OK, the govt certainly shouldn't be in the business of specifying approved religions; but given that the religious invocation is an established, constitutionally-approved, and widely desired custom, it seems valid to try to ensure that the appeal to the wide majority of those present.

So, what if instead of this regulation, they put it to an online vote? Potential invokers could put their name and religious affiliation on the ballot, with no restrictions, and then whoever planned to attend the meeting could vote for whomever they wish. Probably get much the same end result but without the heavy hand of government.

[nous_athanatos]

kenB--So, what if instead of this regulation, they put it to an online vote? Potential invokers could put their name and religious affiliation on the ballot, with no restrictions, and then whoever planned to attend the meeting could vote for whomever they wish.

Well, from a minority religion standpoint, all this means is that every single time a vote came up the minority would receive another public reinforcement that whatever beliefs they held in common with the majority were far less important than the few over which they differed. It would reinforce to them every single time that their religion--a big part of most people's self-identity--has no place at the table with the majority. The minority is tolerated there only because it is a silent minority.

Is that the message we want to send to our fellow citizens?

This is why, IMO, hospitality is a superior value to tolerance. Hospitality demands that the Other be given the position of honor as a measure of your own honor.

[John Biles]

Ultimately, I have to agree that if you're going to have opening prayers at a public event, there's no good grounds for excluding a Wiccan.

Though my gut instinct is to suspect that she applied in the expectation of being denied to give the ACLU an opening to make a lawsuit.

But I'll wish her luck anyway.

[David Schraub]

When the original decision by the 3 judge panel came down, I wrote an extended legal critique of it here. It also addresses and distinguishes Marsh.

Love the Habermas quote, btw!

[Jesurgislac]

kenB: but given that the religious invocation is an established, constitutionally-approved, and widely desired custom, it seems valid to try to ensure that the appeal to the wide majority of those present.

Why? It is also a long-established tradition in the US that the minority's rights must not be overridden by the will of the majority.

If there is to be a religious invocation at any public meeting, then it must be agreed that all those who do not agree with that particular religion need to be quiet and respectful during that invocation (with the caveat that the invoker should be respectful to other religions in their prayer). That should apply whether the religious invocation is majority or minority.

John Biles: Though my gut instinct is to suspect that she applied in the expectation of being denied to give the ACLU an opening to make a lawsuit.

Probably. And given that the only acceptable decision is either all religions may expect to be allowed representation, or none, I should think that none would be as acceptable a result as all.

I am personally an atheist. But if someone announces a minute of silent prayer, I'll bow my head politely and use the moment for silent thought. What gravels me is being drawn into someone else's belief system. I'd go for none - or, at minimum, a minute's silence for those who choose to pray to do so.

[kenB]

Is that the message we want to send to our fellow citizens?

Personally? No. But I don't see why, if 99-100% of the people in attendance are Christian and have absolutely no interest in other traditions, we should force them to either endure invocations that they'll be actively antipathetic to or not have an invocation at all. We require tolerance of our fellow citizens, but not open-mindedness.

[Amos Newcombe]

kenB: Because they (the Board of Supervisors) are not there as private citizens -- they are there in their capacity as feeders at the public trough. Wiccans pay taxes like everyone else. To exclude them from full participation in this public invocation is just wrong.

For a private citizen, tolerance may be good enough. But when paid public officials are dispensing public resources, such as time at a public meeting, then yes -- we do require open-mindedness, and acceptance of everyone.

We are forcing them because they are public officials, and have taken on an obligation to represent everyone equally -- if their religion forbids them to do this, then they should never have run for office, and can resign at any time.

[CharleyCarp]

KenB, the Fourth Circuit was at pains to specify that the invocation is solely for the benefit of the Board, and not at all directed to the public in attendance. Thus, the franchise for your election idea would appropriately be restricted to members.

I'm not an adherent of the Wicca faith, but I can't see that an incovation based on it -- kept strictly within the County's guidelines as to mentions of specific dieties (one may not mention Christ, for example) -- would be harmful in any way. Indeed, it might help the members approach the evening's business in an open-minded way. While we may not want to force open-mindedness on the citizenry, surely it's a virtue for a legislative body.

As to whether Ms. Simpson was hoping for a denial, I think that's a mindreading foul of the first order. If she is actually an adherent of Wicca -- and I don't see any reason at all to think she isn't -- the suggestion that she isn't, without evidence, is fairly offensive. Surely if an adherent she would have preferred to give the invocation for (a) the help her goddesses and gods might do to the County's business and (b) the recognition she might acheive for her faith.

Active hostility to the Golden Rule is a hallmark of Christianity Untouched by the New Testament, a sect we seem to be seeing more of all the time.

[hilzoy]

Personally, I think the Board tipped its hand when it excluded Wicca not on the grounds that it was in some way pernicious or bad, but on the grounds that it invokes "polytheistic, pre-Christian deities." That's not a rationale based on any sort of public interest; it's a Christian one.

[kenB]

KenB, the Fourth Circuit was at pains to specify that the invocation is solely for the benefit of the Board, and not at all directed to the public in attendance. Thus, the franchise for your election idea would appropriately be restricted to members.

Ah, thanks for the info. Under that logic, I don't see why they couldn't legally exclude Wiccans or anyone else -- if they're the only audience that counts, then it's hard to see how they can be harmed by their own choice of speaker.

[Anderson]

KenB, the Fourth Circuit was at pains to specify that the invocation is solely for the benefit of the Board, and not at all directed to the public in attendance. Thus, the franchise for your election idea would appropriately be restricted to members.

That's the part that I found particularly dubious, so I'm hoping we get to hear the SCOTUS on that issue. You could drive a pretty big truck through a loophole like that.

[John Biles]

To Charleycarp:

Staging test cases is a long American tradition. John Scopes, of the famous Scopes trial, was not a biology teacher--he was one of the school's coaches, asked by people wishing to challenge the law to act as a substitute teacher in biology class, so that he could then be charged with violating the law and have a test case.

Given where she lives, I would be fairly surprised if she wasn't aware she was likely to be shot down.

[trilobite]

it's not as though Christianity cannot be practiced without things like Christian opening prayers at County Board of Supervisors meetings. As I said in a previous comment thread, when school prayer first became an issue, I was mystified by the claim that liberals were trying to ban prayer in the schools, since I had for years had a downright voluble relationship with God while in school

Well said! And may I add, it's not as though you have to have a monument to the Ten Commandments in the courthouse instead of in the church two blocks down. Or on top of your house.