The New Constitution: Amendment III – freedom of religion, separation of church and state

The New Constitution

Amendment III

The government of the people shall be expressly secular. Congress will make no law respecting an establishment of religion or prohibiting the free exercise thereof; nor shall any individual, religious or quasi-religious entity or collective engage or seek to influence the course of legislation or policy in accordance with theological creed.

Rationale

It seems more than evident that the original Bill of Rights intended to establish a secular government that assured the free practice of religion. However, through the years their failure to articulate the wall between church and state more clearly has resulted in a system where not only is advocacy of Judeo-Christianity a near-de facto requisite for election to public office, officials are increasingly bold in their promotion of overtly theologically driven policy.

Amendment III reiterates the original framers’ assurance of the freedom of conscience, while also safeguarding government from the corrosive influence of various theologies.

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Index: The New Constitution Series

39 comments

  • Frank Balsinger

    Naturally, I’m completely for this amendment, exactly as it stands. What are the ramifications, however, for a “New Religion Movement” (read: cult) that wishes to express its spirituality through polygamous mate-swapping orgies while tripping on ayuhuasca, or a monthly lemur sacrifice, or by having children baptized in a local body of water handle mercury to wash away the taint of sanity?

    • The new amendment would very clearly strengthen the government’s hand in dealing with actions that would be deemed crimes were they not cloaked by religious claims. For instance, we occasionally get parents who let their children die rather than seeking medical attention because their religion teaches them to pray the sick away. If another set of parents simply let the kid die without the religious claim, they’d be off to jail immediately. The new paradigm would set those actions on equal footing, since religion can no longer be a rationale in legal matters.

      Does that answer your question?

  • Where does this leave the Southern Christian Leadership Conference during the civil rights movement? What about when government regulations have a clear impact on religious groups, such as the application of nondiscrimination laws to religious practice? When New York City seeks to regulate what mohels do, can religious bodies not speak up?

    I’m fine with government being neutral between religious and secular motivations; I think putting a thumb on the scale against religious ones invites all sorts of problems.

    • Hi Adam. Thanks for dropping by. Let’s take these one at a time.

      Where does this leave the Southern Christian Leadership Conference during the civil rights movement?

      That was a religious group, but its agenda was a civil one, not a theological one. I don’t think there would ever be an issue with activism on the part of religious groups, so long as the thing they’re pursuing isn’t about, as the amendment says, creed.

      What about when government regulations have a clear impact on religious groups, such as the application of nondiscrimination laws to religious practice? When New York City seeks to regulate what mohels do, can religious bodies not speak up?

      There may be cases where this one falls to the courts. In my view, there should be no religious right to discrimination. We have to acknowledge that there are all kinds of cases where religious bodies claim the right to do, as a function of their religion, what others can’t do. The above example of letting a child die. Rastafarians and pot. Mormons and polygamy. So some of what you’re poking at isn’t new. But I think that a secular government, as described here, would strongly respect the right to believe and practice, but would draw a hard line between that and seeking to impose those beliefs on others and to act in ways that are detrimental to others.

      • When you say “influence the course of legislation or policy in accordance with theological creed,” doesn’t that exactly cover the SCLC? A civil agenda, motivated by theological belief. Or the Catholic Church’s efforts to seek a humane immigration policy, motivated by the Church’s social justice teachings.

        The “impose beliefs on others” question is a wholly separate one than the one you cover by this proposed amendment, which would restrict the right to petition the government based on the motives of the petitioner. (There’s no role for the courts here, if the amendment says what you propose it should say.)

        In terms of a right to discriminate, do you seriously believe that a female rabbi should be able to sue an Orthodox congregation for employment discrimination if the religion has, as a core belief, that only men can be rabbis? Holy free exercise problem, Batman!

      • When you say “influence the course of legislation or policy in accordance with theological creed,” doesn’t that exactly cover the SCLC? A civil agenda, motivated by theological belief. Or the Catholic Church’s efforts to seek a humane immigration policy, motivated by the Church’s social justice teachings.

        In a word, no. Sam Harris has this question: what can you do in the name of religion that you can’t do without it? Feed the poor? Atheists feed the poor every day. Oppose racism? The most active opponents of racism in America today aren’t religious organizations.

        It’s not simply wrong to claim that what the SCLC was doing was somehow an exclusively religious impulse, it would be arrogant for a Christian to make such a claim. You don’t have to be religious to oppose murder, theft, rape, child abuse, etc.

        The amendment targets attempts to impose expressly theological dogma on policy.

        The “impose beliefs on others” question is a wholly separate one than the one you cover by this proposed amendment, which would restrict the right to petition the government based on the motives of the petitioner. (There’s no role for the courts here, if the amendment says what you propose it should say.)

        The “it means what it says” standard is, to put it mildly, not borne out by our Constitutional history.

        In terms of a right to discriminate, do you seriously believe that a female rabbi should be able to sue an Orthodox congregation for employment discrimination if the religion has, as a core belief, that only men can be rabbis? Holy free exercise problem, Batman!

        This is a good question. IN general, I’d think the church had a right to conduct its internal affairs as it saw fit. The issue is when they step beyond the bounds of their religious practice. Abusing a child isn’t defensible as free religion – that’s a crime, period. Is discrimination in the same boat? For a variety of reasons I think not, but with this Constitution, as with the one we already have, there are places where rights might come into conflict. Think about free press vs. fair trial, for instance. You may have a hypothetical that a court would have to adjudicate some day.

        Again, though, I don’t think there’s any question about the purpose of this amendment at all.

      • “Seek to influence …. in accordance with theological creed” doesn’t seem to allow for a mixed-motive opportunity; it reads to say “if religion is a motive at all, you can’t do it.”

      • Frankly, I’m okay with that. If you want to do something that can stem from religious or secular motives, great. I can’t imagine a scenario where this would be used against an organization interested in something with justifications that are more universal.

  • Sadly, you can’t get rid of religion, but you can try to contain it. This attempts to do that. The SCLC was only one of many civil rights organizations working at the time. Had it not existed, those same people would have found a home in other organizations and accomplished the same thing.

    Giving a religious organization credit for Civil Rights is like giving black and purple uniforms credit for the Ravens winning the Superbowl. That was just the uniform the change movement wore.

    At any rate, S. Baptists, Mormons, etc were adamantly against civil rights. If it had been a battle of religious organizations, the SCLC would’ve been crushed. It was us seculars that made the diff.

  • I think that any rewrite of the Bill of Right’s religious protection is tremendously incomplete without explicitly extending the traditional protections to the non-religious (by far the most condemned and oppressed of any category re: religion).

    • I don’t see how one could interpret this amendment, or anything else in this document, as allowing oppression of any group. As we roll out more and more amendments I believe this gets even clearer.

      • And yet, we see claims all the time that the nonreligious are *not* explicitly protected by the 1st Amendment, that the Founders’ intent was only to protect your right to choose HOW you worship, not to protect your right NOT to worship. Until this is made explicit, we will continue to hear such inanity (and possibly suffer legal repercussions, under certain political/social climates). What is the source of your resistance to spelling out that religion freedom applies to *everyone*?

      • Abuse of the original Bill of Rights doesn’t mean that the right isn’t there or that it isn’t clear. It means that corrupt people are, well, corrupt. The amendment here cannot possible be construed as not applying to everyone equally. If you make the government secular, you have rather emphatically stated that there will be no discrimination on any vaguely religious grounds.

        Constitutional amendments need to be as simple as possible and as clear as possible. I see no confusion at all and fear that adding more types of specificity simply give lawyers more words to fuck with.

      • Actually, as written it only addresses the rights of religious practitioners. It says that the *government* is and shall be secular, but says nothing of the rights of the non-religious individual. Not that my vote counts, but I would *not* support this amendment as currently written.

      • Can you give me an example of what you’re worried about? I’m having a hard time understanding how you think this leaves the door open to abuse.

      • Let me reduce it to its most fundamental level, then. Your wording assumes that religious citizens need protections (and limits) and offers it to them (similar to the current 1st Amendment, only with stronger and more explicit limits). Why are the non-religious not entitled to the same protections, overtly and unequivocally expressed? They are a significant–and growing–segment of the population/citizenry. Separation of church and state issues (posting the 10 Commandments in government facilities, for example) would be easier to confront across the board going forward if there were specific wording that could be pointed to in a Constitutional amendment that asserted a right to freedom from not just the imposition of one particular flavor of religion over another (the primary concern of the Founding Fathers) but from the imposition of any and all religion (an increasingly salient concern in the 21st century). The “no-religious-test-for-public-office” clause of the Constitution addresses this, but more general assurance is needed.

      • Okay, first off I think what you’re after is already here. However, let me ask you to hold off for a day or two and see if what happens in Amendment V on Thursday satisfies your concerns. If so, we’re good. If not, let’s come back to it in its broader context.

  • Pingback: The New Constitution: Amendment III – freedom of religion, separation of … – Scholars and Rogues | Christian Politics

  • Wow, this is fascinating. Amendment I completely destroys states representation and, interestingly enough, state sovereingty — a cornerstone of the original constitution and it draws only mild comment with virtually no debate. Amendment II overturns the court ruling on corporations as persons and same level of comment. Amendment III, only reinforcing and amendment already in the constitution and all hell breaks loose. Do you have an amendment on sex:)

    It may not really be a consittutional issue, but I was kind of hoping you would propose a ban on tax relief for religious organizations. Not that I am cynical about religion but I believe that would bring religion into a more realistic perspective faster than anything else.

  • Regarding taxing religious organizations in the United States of America. Huge mistake that will definitely lead to churches feeling they have say in governmental business. They will feel equally as entitled as a citizen to bring grievances to government and then feel entitled to services from government, and feel entitled to request specific laws and protections from government. Not respecting an establishment of religion also means our government should never give religion any relationship of any kind with democratic government.

    The first amendment to the United States of America’s Constitution is very clear as written and needs no editing. What we need is an educated populace who all understand why James Madison feared governmental involvement in religion. A generation of young people have been left ignorant of the concepts within the Bill of Rights. Civics education is badly ignored in public education. Civics has been cut-back, and even dropped from school curriculums everywhere, as if it were a music program that the schools could not afford and could do without. The answer is educate, educate, educate. We need to petition school district governing bodies. We need politicians who instead of pandering to religion speak with reason against their involvement in government – politicians with courage and audacity.

    The office of Faith Based Initiatives is still in place as a White House department because of a Texas governor who was paying back his major political donors/supporters, and who happened to be an idiot. Closing this office permanently should be a priority right now. Petitioning to close the office will create media discussion and be very good for the public debate. President Obama has done nothing about the existence of this office because we the people forgot about it and the White House knows this. It is us who have to get their act-together. The people will still be lethargic and ignorant of the Constitution, whether it is a new constitution or the old one.

    James Mason —-> http://JamesGMason.com

    • Why should one organization of people who are united by common interests (such as Wal-Mart or the Sierra Club) be treated differently from another organization of people united by common interests (such as my local Methodist or Unitarian-Universalist church)?

      • Because throughout history, especially since Christianity and Islam, when religious factions control any part of government (and that control could be a modern D.C. lobby), said government becomes corrupted by moralists who make belief based (non evidenced) decisions which diminish the freedoms of populations. They become tyrannical, and brutal and violent. Never forget the greatest intellectual capital of the world was destroyed by Mark’s minions at the beginning of Christianity. Alexandria and it’s library was demolished by rioting Christians who were pissed at the multiple god theories of that time. Our world is very likely behind in technological progress by hundreds of years because of that one Christian riot. Inspired by Mark’s gospel.

        The founders knew about this. Madison definitely had knowledge of that day in Egypt.

      • Fair point, James. But I fail to see how that’s any different from today, when our government has been corrupted by moralists who are making belief-based decisions that diminish the freedom of our citizens. There’s and IRS requirement that churches not partake in overt political activity, yet churches do it all the time. The United States Council of Catholic Bishops interferes (or tries to) all the time, as does the Southern Baptist Convention and the Church of Jesus Christ of Latter-Day Saints.

        Churches will organize to influence government whether they’re taxed or not. At least by taxing religious institutions you reduce their financial power to manipulate government. It doesn’t hurt that religions would also be placed on the same level as all other organizations instead of elevated above all other organizations.

    • “…lead to churches feeling they have say in governmental business. ” Are you arguing that they do not feel that way now? Please. They own radio stations and television stations devoted to promoting a right wing agenda; they held seminars in the basements of churches on why it was wrong to vote for Obama. And if someone cites examples on the other side of the political spectrum it only strengthens my argument.

      I am suggesting the removal of the tax-free status in addition to what is already in the new amendment. If I understand some of the laws of economics correctly, by removing that tax free status then they will shrink in size and reduce the influence they are already imposing on the government. Eliminate the deduction for donations to religious organizations and we will see the real value society believes they bring to the table.

      And quit picking on music programs. I will argue the arts are nearly, if not just, as important to a well rounded education as Civics. And they don’t teach Civics and more? That’s criminal — and probably faith based. JK

  • I think you may be trying to thread a needle here in some respects. Most of our moral structure is based on tenets laid down over the course of thousands of years by religion. Humanism is itself a response to religion, as humanism was created in an attempt to define a universal moral code without needing to resort to the “Daddy’s going to spank you if you misbehave” moral threat of the Abrahamic religions.

    So while I agree in principal with the amendment, I’m not sure how any system of governance can stay strictly secular when its laws are inherently based on the religiously-based moral beliefs of the governed. Inevitably you’ll end up with some religions moral codes being overruled by legislation, and not always for good reasons.

    • I had to reply to this one. Those morals do not come from religion. Do you think Neanderthals and other hominids had no morality? They succeeded in the hunt and succeeded at forming communities. Embrace cultural anthropology. Religion just attempts to righteously enforce existing morals with threats of eternal punishment from a mysterious and invisible force. Morality is as old as the first rule of a cave given by the biggest cave-man with the largest club. If his morality was correct and it benefited the community, it would be passed on and taught to all.

      There is not one damn thing spiritual about morality. It’s learned and it’s very innate because nearly all of us have with us the inherent proclivity to get along within our community, if we do not we suffer and die.

      Our morality is common sense and genetic and It begins in community where the concept of what is good for the community is good for all is learned.

      • Can you tell Brian that you hit a button? Cheers dude.

      • Yep, I can tell I hit a button. I hope my response explains where I’m coming from with my statement, however.

        However, I think we’ve both got a bit far afield from Sam’s original point, and I don’t want to divert any further. If you would like to respond further, I can CC our comments and put them in a fresh post where we can continue our side discussion about morality and religion.

      • James – I agree that some level of basic morality is cultural and genetic. Chimpanzees and other primates have been studied for decades now and they’ve been found to have basic moral codes such as fairness that are enforced by entire communities – chimps that steal food have been shunned, and so on. But there’s more to morality than basic fairness and understanding that sometimes you and your neighbor can do more together than either of you could do separately.

        There have been studies into human behavior that demonstrated that cheating is just as inherent to our neurological makeup as fairness is. And if you think about human evolution, this (and other immoral behaviors) makes sense. Generally speaking, working together and fairness is the better model for human survival – everyone’s more likely to survive when individuals all work together. But when a volcano erupts or a war flares up and causes social collapse, immoral individuals may well have a better chance of keeping the species alive for another generation. At the risk of anthropomorphizing human DNA, our genes don’t care how we perpetuate the species, only that we do, and sometimes the “best” way to ensure species survival is via individual immoral behavior.

        So human society has these two conflicting threads, moral vs. immoral, both of which are inherent to our human nature. Until relatively recently in human history (starting approximately around the time of the Italian Renaissance, at least in Europe), religion was the dominant organization capable of keeping the immoral threads in check. Partly that’s because religions were the dominant sources of education and learning – there were few other bodies that were sufficiently organized to pass knowledge efficiently from one person to another.

        And also until relatively recently, religion was quite happy to keep immorality in check via force (the Spanish Inquisition, for example) instead of relying merely on eternal damnation. Historically speaking, modern Christianity’s willingness to leave punishment to government and God is an aberration, not the norm.

        All that said, we’re now in a world where science has provided us with a better understanding of how our moral codes are created and the reasons for them. And we have technologies that, for lack of a better word, democratized the transmission of moral codes independent of religion. As such, religion no longer needs to be the dominant source of morality that it has been. The question is how we transition from a religion-dominant culture/civilization to a more humanistic culture/civilization.

      • >>And also until relatively recently, religion was quite happy to keep immorality in check via force (the Spanish Inquisition, for example)

        I think you are far too generous to the powers behind religion here. Most of them were concerned with enforcing conformity and compliance, not “morality.”

  • >>Inevitably you’ll end up with some religions moral codes being overruled by legislation

    Sounds like a wonderful outcome to me. Secular values *should* win out over religious “morality” in such cases as are likely to be challenged (e.g., Sharia “law,” shielding of pedophiles by the Catholic church, etc.).

    As for the rest of your argument (which I think is overstated, but even accepting it as entirely true): there is no necessity demanding one throw out the bathwater of functional, justifiable law just because one dumps the baby of religious origin.

    • I’m just fine with your examples as well – violence shouldn’t be tolerated. But not all examples are violence-based. The example I’m thinking of at the moment is controlled substances that are used for religious ceremonies – religions could not claim to be exempt from the Controlled Substances Act under this Amendment, at least as I understand it. And while that might make sense for certain drugs (such as those that induce violent behavior), I don’t see any good reasons to prevent hallucinogens from being used for religious purposes.

      And there’s nothing in the Amendments we’ve seen thus far that would prevent something like the Controlled Substances Act from coming into existence for strictly secular reasons.

  • >>Can you give me an example of what you’re worried about? I’m having a hard time understanding how you think this leaves the door open to abuse.

    Possibly relevant example from today’s news:

    http://www.patheos.com/blogs/friendlyatheist/2013/07/24/republican-led-house-approves-amendment-banning-non-religious-military-chaplains/

    • As I see it, the amendment wouldn’t allow for chaplains, period.

      • would that not then be contrary to the “or prohibiting the free exercise thereof” portion of the amendment especially for navel personnel?

      • Not sure exactly what you’re asking. You have the right to practice. You don’t have the right for the government to pay for your priest.

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