Jeremy Pierce at Parableman offers (I think for the Christian Carnival tomorrow) an interesting short essay on the establishment clause regarding education, creationism, and the Establishment Clause and the associated Free Exercise Clause, err, Phrase. I think his argument makes sense, but likely ignores much of the the larger part of Constitutional lore that lawyers depend on, which is the larger body of prior rulings, i.e., stare decisis. Specifically two cases are mentioned, Lemon and Lynch … but I’m willing to bet the cases cited in precedent number in hundreds or perhaps thousands.

However, us lay members (see Pelikan: Interpreting the Bible and the Constitution) of the US with respect to the body of law have little but (note Mr Pierce does refer to several SCOTUS cases) the text of the Constitution from which to judge whether a ruling or act is Constitutional. In some sense that might actually be a good thing.

Creationism is one of the “standard” issues regarding church/state separation that comes up in conversation and in blog essays. However a decidedly more radical one is one I’d offer. I think it can be argued, along similar lines as the argument presented in the linked essay noted above that the following is in fact Constitutional. Would it be Constitutional for a State to establish the death penalty and restrict its application to those who profess faith and believe in an effective soteriology. Or in plainer English, only those who believe in the afterlife might be put to death by the state.

I think the fundamental problem with Supreme Court doctrine on this sort of issue is that none of this has much to do with what the Constitution actually says. The First Amendment’s Establishment Clause reads, “”Congress shall make no law respecting an establishment of religion”. Together with the misnamed Free-Exercise Clause (which is a phrase, not a clause, which adds “or prohibiting the free exercise thereof” we have the entirety of the Constitution’s pronouncements on religion. The founders were preventing the establishment of a church state, such as Great Britain’s Church of England. Congress is prevented from making a law respecting the establishment of religion.

So. Examine for a moment Mr Pierces discussion about what “respect to” or “giving respect to” might mean.

The term ‘respecting’ could mean either “with respect to” or “giving respect to”. I tend to think it means the former, which is a broader prohibition. Congress can’t make any laws about the setting up of religions. Religions are free to do as they choose in setting themselves up, without laws prohibiting their free expression. But even in the more restricted second reading, Congress is only preventing from making laws that show respect for a religion. In that case, it still doesn’t mean that government employees can’t show respect for a religion (never mind show disrespect). This is about laws prohibiting certain religious conduct or establishing a state religion.

The question that I find no ready answer for, is how is that sense of “respecting” religion betrayed by failing to execute men (and women) who don’t believe they are assured of an afterlife. If you take a persons deeply seated beliefs seriously, a Christian for example, should not fear death, for it has no sting. An atheist on the other hand has plenty of reason to fear the ending of his days, for that is the end of him … there is more there. Basically the statement is saying, the state will only execute people who are in an essential way, OK with being killed. That seems to me ultimately respectful of religions and in a real sense cognizent of the role of religion regarding soteriology.

Related posts:

  1. Science and Religion: A Typological Exercise
  2. Who’s First Amendment Is It, Anyway?
  3. Romney’s “Faith” Speech
  4. Separation of Church And State
  5. A Capital Question

Filed under: Government • Mark O. • Religion

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