A primer on what “separation of church and state” means

The Family Policy Council of Washington state on why Religious Lawmaking is A-OK with them! The speaker is Joseph Backholm, the executive director of said organization

No, the phrase “separation of church and state” does not appear anywhere in the United States or Washington State constitutions.

Very true. The US Constitution only prohibits (a) religious tests for political office, and (b) the establishment (state adoption) of a religion, or prohibition of the free practice of religion.

Regardless, the fact that people of a particular religious faith share common ideas does not mean that those ideas are necessarily unconstitutional because they are religious.

True.  The prohibition is against ideas that are proposed solely because they are religious.  That religious people come up with an idea (e.g., that Heroes pretty much has sucked since the first season) doesn’t mean that the idea is necessarily religious or, if put into law, illegal.

To the contrary, our laws against stealing, killing, lying, perjury, incest, rape, battery and destruction of property were all religious tenets long before they were laws.

Now, there’s an interesting observation.  Which came first, religious views on a subject or civil injunctions against it?  Did Thag in his cave invoke the Sky Spirits against stealing sabre-tooth meat from each other, or did he say that anyone who stole meat from each other (except, probably, for him as the civil, i.e., strongest, authority) would get brained with a club?

In other words, did folks only decide that stealing, killing, lying, perjury, etc. were bad because they were given a religious inspiration from God to consider them such, or did they decide they were bad because they caused societal problems (i.e., required laws to prohibit)?  Did Broog say, “Hey, Gronk raped my wife, he should be punished” because God inspired him to do so, or because he thought life would be better for the tribe if people didn’t rape each other’s wives?

Now no one wants to repeal the criminal code because its major themes were first recorded in the Bible.

The Mosaic  law dates back to 300 to 600 years BC; maybe some elements date back  1000 years BC.  The Code of Ur-Nammu dates back around 2100 BC, and includes prohibitions against murder and theft, for example.  The Bible may very well establish key legal themes (e.g., in the Ten Commandments), but not only are many of those not carried forward into our criminal code (rules against blasphemy and covetousness, for example), but other, arguably older legal codes are part of the record.

As much as Mr. Backholm might want to think of the Bible as a unique resource, most societies have included laws regarding property, against murder, etc.

Now the idea that a preference for heterosexual marriage is unconstitutional is [sic] simply because it is consistent with religious doctrine is legally and constitutionally unsupportable.

I don’t think anyone has argued that religious doctrine being in favor of a particular legal proposition makes it per se illegal.  The argument is that asserting it should be preferred (or discounted) solely or primarily because of religious doctrine is unconstitutional.

In other words, if the doctrines of Religion X say that everyone needs to smear red dye on their nose on alternate Thursdays, or that dancing with the opposite sex is forbidden on months that start with a vowel, requiring the population to follow such rules by law is unconstitutional, unless y0u can come up with a compelling and defensible non-doctrinal reason for doing so.

While this has generally come about in the context of Christian (or Christian denominational) doctrine, one would hope that folks on the Right would realize that this similarly defends against Buddhist or Jewish or Muslim doctrine being coded into law.

Now our Founding Fathers wanted to avoid a situation where a religious organization wrote the laws for the county.

Yes.

However, they did not intend to create a country in which citizens and elected officials were forbidden from reading, discussing, thinking about or even legislating ideas that happen to be religious in nature.

True.  Indeed, arguably most law has a moral dimension to it.  What behaviors and actions we forbid by law, what drives our desire to treat the poor and sick with charity, how we comport ourselves in conflict with other nations — all of these have religious drivers and implications.

The constitutional principle — embodied in the “separation of church and state” which Jefferson alluded to — is that those religious drivers cannot be the sole justification for a law.  It’s that simple.  The reason should be obvious: the alternative is that whomever has a majority control over the legislature (be it a particular Christian sect — Protestant, Catholic, Mormon, whatever — or a different religion) would be able to drive its particular religious doctrine into having force of law, regardless of what anyone else wanted or believed or wished to follow.  That, friends, is loss of religious freedom.

Laws that mandate attendance at church on Sunday (or a particular denomination’s church on Sunday, or on Saturday, or on Friday) are off limits because of this principle. We are protected not just by popular vote, but by a super-majority concept that says there has to be a strong secular reason for doing something.

So, if you believe your faith indicates a better path for society — heterosexual marriage, equality between heterosexual marriage and homosexual marriage, polygamy, whatever — you can preach it to the high heavens and try to convince everyone to follow your path.  But the oft-decried “separation of church and state” indicates that you have to come up with a non-religious basis for decreeing that people must (or must not) do something by force of law.  This protects freedom of conscience a way that “whoever has a majority vote wins all arguments” never can — and that’s something we should all be (in the them of this past week) thankful for.

Being able to dictate law because of religious doctrine is only healthy (and that in the short term) for those who will always be in power.  And if history is any judge, that’s a dangerous (and prideful) place for any religion or denomination to assume they will be forever.

(via Joe.My.God.)