See?

chuckd said:

---

Dr. Watson,

In what way was the church and state "one and the same". What particular "link" between church and state does the Constitution protect citizens from? What did the Puritans believe regarding this link?

---

England after the split with Rome specifically saw the state and church as one entity under the monarchy supporting the nation. While the legal dynamics between church and state were complicated through the Middle Ages into the Enlightenment, the social dynamics were far less complicated with both supporting the other in social hierarchy and social order. The Constitution is intended to prevent the link between church and state and allow for freedom of conscience. This wasn't a minor threat in the colonial era. Baptist preachers were harassed and imprisoned in Virginia, Quakers in Massachusetts were hanged, Catholics in Maryland after the Glorious Revolution were constantly harassed and their rights limited.

Puritans believed in a separation of the business of church and state. Ministers could not hold or stand for political office. At the same time, the meetinghouse functioned as both local church and local seat of government and court. Ministers advised and promoted political leaders, and laws were intended to enforce certain orthodoxies while allowing for some freedom of conscience within proscribed limits.

When you say "one and the same" or "one entity", I envision ministers of the gospel governing the people, making laws and bearing the sword. Politicians preaching on Sunday and administering the Lord's Supper. Is that what you mean? Surely not because you said Puritans believed ministers could not hold or stand for political office.

chuckd said:

---

When you say "one and the same" or "one entity", I envision ministers of the gospel governing the people, making laws and bearing the sword. Politicians preaching on Sunday and administering the Lord's Supper. Is that what you mean? Surely not because you said Puritans believed ministers could not hold or stand for political office.

---

England was a unified church and state under Henry VIII. The fact that his generals didn't wear cassocks doesn't mean the church and state were separate.

Dr. Watson said:

---

chuckd said:

---

When you say "one and the same" or "one entity", I envision ministers of the gospel governing the people, making laws and bearing the sword. Politicians preaching on Sunday and administering the Lord's Supper. Is that what you mean? Surely not because you said Puritans believed ministers could not hold or stand for political office.

---

England was a unified church and state under Henry VIII. The fact that his generals didn't wear cassocks doesn't mean the church and state were separate.

---

One and the same
One entity
Unified

What does that mean? Henry VIII adopted erastianism which has many false teachings, but a "unified" church and state is not one of them.

Even so, your point seems to be: England once held to erastiansm which looked like a unified church & state, so anything looking like a relationship between church and state is erastianism, unified, one and the same, and one entity. Despite the Puritans rejected erastianism long ago.

It means the church and the state answered to the same authority and derived power from that authority. To question Henry's church was the same as questioning Henry's state.

chuckd said:

---

Even so, your point seems to be: England once held to erastiansm which looked like a unified church & state, so anything looking like a relationship between church and state is erastianism, unified, one and the same, and one entity. Despite the Puritans rejected erastianism long ago.

---

I'm saying the framers feared the link between church and state. Technically, in theory, the Puritans were not a theocracy. In practice, the state supported one church and that one church supported the state. They socially and politically supported one another and punished heresy through state courts. If you want to be pedantic about it, there was a separation, but that was designed more to protect the church than a concern about the rights of the people under the state or concerns about the legal functioning of the state.

k2aggie07 said:

---

I have had this discussion on here before, but I don't think there is any inherent evil in a country having a national religion. I think that freedom of religion and state religions aren't mutually exclusive. I would need to understand what a law "favoring" a religion means.

---

What would be the purpose of a state religion? To impose beliefs, persecute others of the wrong faith, provide tax and legal privileges to the sponsored religion? Or would it be purely ceremonial and exist as an arrangement without any legal teeth? If the goal is to protect individual freedom of religion and to protect churches from civil interference, then in what way does a state religion add to this goal? How does a state sponsored religion increase your freedom of religion or help protect your church? I'm missing something here - this statement of yours feels very much at odds with what I thought your position was.

'Favoring' a religion - How about favorable tax status for some churches and not others, using tax payer money to finance the construction of some churches and not others, using tax payer dollars to finance charity work by one church and not another, requiring doctrine from one religion be taught in school and not the doctrine from another religion, writing laws that restrict civil legal arrangements by requiring that they comply with religious criteria. . . .

Quote:

---

I believe in the two spheres doctrine - that civil governance and matters of faith have separate jurisdiction.

---

At all levels of civil governance or only at the federal level? I get that you are arguing that the 1st Amendment only restricts Congress - but I'm trying to ask a "SHOULD" question - should civil governance and matters of faith have separate jurisdiction at all levels of our government? Or should this be a state or local decision?

k2aggie07 said:

---

Free exercise of religion does not mean keep all religion out of government. You keep saying it as if they were synonymous, and they are not.

Hate to sound like a broken record, but the first amendment exists to protect the free exercise of religion from government, not to scrub all religious aspects from the government. The concern wasn't a tyrannical church, it was a tyrannical government.

Anyway you could sum up the general sentiment of separation of church and state in those days as "we all believe in God, so there's no reason to bring religion into it."

---

the free exercise clause doesn't, but the establishment clause of the first amendment does. The state churches of the original colonies would be illegal today. Requiring religiously-themed oaths of office is also unenforceable. Even nativity scenes on public property have to be somewhat secularized.

Quote:

---

Even nativity scenes on public property have to be somewhat secularized.

---

What is that? A sign over Mary that says "not a virgin"?

Quote:

---

the free exercise clause doesn't, but the establishment clause of the first amendment does. The state churches of the original colonies would be illegal today. Requiring religiously-themed oaths of office is also unenforceable. Even nativity scenes on public property have to be somewhat secularized.

---

And yet, they weren't illegal when the establishment clause was written, weren't illegal after the establishment clause was ratified as an amendment with the rest of the bill of rights. The first amendment wasn't incorporated until 1923 - and the reason was the 14th amendment.

What this should tell you is that the establishment clause doesn't mean what you have been told. At least not by itself.

Establishment clause was to prevent Congress from establishing a church. Church of England, Church of Connecticut, Church of Massachusetts, but no Church of the United States.

k2aggie07 said:

---

Quote:

---

the free exercise clause doesn't, but the establishment clause of the first amendment does. The state churches of the original colonies would be illegal today. Requiring religiously-themed oaths of office is also unenforceable. Even nativity scenes on public property have to be somewhat secularized.

---

And yet, they weren't illegal when the establishment clause was written, weren't illegal after the establishment clause was ratified as an amendment with the rest of the bill of rights. The first amendment wasn't incorporated until 1923 - and the reason was the 14th amendment.

What this should tell you is that the establishment clause doesn't mean what you have been told. At least not by itself.

---

It means it wasn't interpreted as impacting the states until the passage of the 14th amendment. The fact that incorporation was ignored for some years does not invalidate the position.

Martin Q. Blank said:

---

Establishment clause was to prevent Congress from establishing a church. Church of England, Church of Connecticut, Church of Massachusetts, but no Church of the United States.

---

Except it was viewed as antithetical to the American republic from almost the beginning and all state churches were gone in fact by Jackson's second term and gone in principle well before that.

Dr. Watson said:

---

Martin Q. Blank said:

---

Establishment clause was to prevent Congress from establishing a church. Church of England, Church of Connecticut, Church of Massachusetts, but no Church of the United States.

---

Except it was viewed as antithetical to the American republic from almost the beginning and all state churches were gone in fact by Jackson's second term and gone in principle well before that.

---

Why "except"? Did I say something incorrect?

Martin Q. Blank said:

---

Dr. Watson said:

---

Martin Q. Blank said:

---

Establishment clause was to prevent Congress from establishing a church. Church of England, Church of Connecticut, Church of Massachusetts, but no Church of the United States.

---

Except it was viewed as antithetical to the American republic from almost the beginning and all state churches were gone in fact by Jackson's second term and gone in principle well before that.

---

Why "except"? Did I say something incorrect?

---

Incomplete

Wait, what is a secular nativity scene?

Google had a bill of rights one that was disturbing at best. A doctor who one, and then some normal ones but with Santa showing up?

Dr. Watson said:

---

chuckd said:

---

Even so, your point seems to be: England once held to erastiansm which looked like a unified church & state, so anything looking like a relationship between church and state is erastianism, unified, one and the same, and one entity. Despite the Puritans rejected erastianism long ago.

---

I'm saying the framers feared the link between church and state. Technically, in theory, the Puritans were not a theocracy. In practice, the state supported one church and that one church supported the state. They socially and politically supported one another and punished heresy through state courts. If you want to be pedantic about it, there was a separation, but that was designed more to protect the church than a concern about the rights of the people under the state or concerns about the legal functioning of the state.

---

Exactly the same thing happened when Utah became a territory. And the US would not allow statehood until there was some daylight between the state apparatus and the Mormon Church.

k2aggie07 said:

---

Quote:

---

the free exercise clause doesn't, but the establishment clause of the first amendment does. The state churches of the original colonies would be illegal today. Requiring religiously-themed oaths of office is also unenforceable. Even nativity scenes on public property have to be somewhat secularized.

---

And yet, they weren't illegal when the establishment clause was written, weren't illegal after the establishment clause was ratified as an amendment with the rest of the bill of rights. The first amendment wasn't incorporated until 1923 - and the reason was the 14th amendment.

What this should tell you is that the establishment clause doesn't mean what you have been told. At least not by itself.

---

Are you a lawyer? I would not let the vast majority of lawyers tell me I'm wrong about a constitutional issue, because quite frankly, most lawyers know just the bare minimum about constitutional issues that they happened to pick up in law school. The first amendment was not incorporated in 1923, it was incorporated selectively and piecemeal, much like the rest of the bill of rights. The establishment clause was incorporated late and it had to do with issues of generally-available state funding being used by religious folks. See Everson v. Board of Education of the Township of Ewing (1947). It had nothing to do with a state religion.

I wonder if there is a single case in American history challenging the establishment of an actual state church. I couldn't find one. The concept was almost extinct in America by the late 1700s. You're not wrong that the federal constitution failed to prohibit establishment of a state religion until incorporation, but you are quite wrong that it was legal in most places. I just looked it up, and we had a handful of examples of religious endorsements of religion through the early to mid-1800s of the type that, if challenged, might have been struck down. Most state churches were abolished within a few decades after ratification of the U.S. constitution, and not because of incorporation-style application of the first amendment. Most states had constitutional requirements that echoed the federal constitutional amendments, which they still do today, usually just to be stricter than the federal constitution. The idea is abhorrent to what the founders called a "wall of separation" between state and church.

The U.S. Supreme Court says this pretty succinctly (also echoing our country's collective, cultural distaste for the concept of state religions) in Cummings v. Missouri (1866):

"Even the freedom of religious opinion, and the rights of conscience which we so highly prize, are secured to us by the State constitutions, and find no protection in the Constitution of the United States. If any State were so unwise as to establish a state religion and require every priest and preacher to be licensed before he attempted to preach or teach, there is no clause in the Federal Constitution that would authorize this court to pronounce the act unconstitutional or void."

In 1930, a New Jersey court amusingly associated the severity of the concept of a state religion with the concept of "nationalizing women," something the Bolsheviks had done around that time - women had literally become state commodities: "One might imagine powers not delegated to a particular state government at the time of the adoption of the Constitution; to give extreme examples, power to establish a state religion or to nationalize women."

You might find this interesting. Daniel Webster argued before the Supreme Court in 1815 concerning the church glebes granted by the British crown prior to the establishment of the state:

"The grant, of course, could not take effect; and the revolution has rendered it utterly impossible that it ever can take effect agreeable to the intention of the donor. By the revolution we have become completely severed from the church of England as by law established. Individuals and societies may possess the same land, have the same mode of worship, and the same ordinances administered in the same manner, and submit to the same discipline, as far as may be effected without the assistance of the civil arm. But this constitutes, in the view we are now taking of the subject, similarity, not identity. It furnishes no ground for legal derivation of civil or legal connection. In every political, civil and legal view, and in all the civil and legal consequences, the dissolution of the church of England, as by law established, was in the United States as total and complete on the revolution, as that of the civil power of the British government. Nor has there ever been in the state of Vermont, a substitute adopted. Every idea of a national or state religion has been exploded."

I think the difference is that today we have more legal resources and sophistication as a result of living in an increasingly litigious society. We can actually grow the law when it comes to issues like this. There are thousands of Establishment Clause cases after 1900. Before 1900, there are like 5. This is the case for most of the U.S. Constitution and the Bill of Rights, which is why to me, it's so incredibly silly and really quite ignorant when people romanticize and wax nostalgic for early jurisprudence as well as other moral and legal failings of pre-modern, early-industrial societies. They don't realize the policies and laws of those times were undeveloped, adolescent, and emotional, typically favoring rhetoric to logic.

Just recently, we had the Trinity Lutheran case before the Supreme Court ensuring that religious institutions could qualify for generally available public money for playground enhancements. Throughout American history, we've actually had to do more sticking up for churches than keeping them out of government. We actually needed to protect religious institutions from being excluded from state activities. 200 years ago, we were trying to protect the church glebes established by the British Crown, and today we're trying to get churches some of that sweet state grant money for playgrounds.

Without getting too sidetracked, you mention that you don't think that the concept of a state religion is "inherently evil." Thankfully, the test for whether something should be excised from American law and policy is not so strict. In practice, state religions are and have been horrible ideas that simply don't work in the vast majority of cases. The difference between democratic societies today and the few examples we have of theocracies are, in my view, roughly as different as the enlightened despots of the 18th century compared to the civility of the new American republic. The founders clearly and with good cause considered enlightened despotism to be a wholly discredited system of government, and considered the establishment of state religions to be more of the same.

I think perhaps you should consider that the historical application of the Establishment Clause isn't quite what you've been told.

swimmerbabe11 said:

---

Wait, what is a secular nativity scene?

Google had a bill of rights one that was disturbing at best. A doctor who one, and then some normal ones but with Santa showing up?

---

lol, have fun making sense of this mess at the Supreme Court:

https://en.wikipedia.org/wiki/Lynch_v._Donnelly

https://en.wikipedia.org/wiki/County_of_Allegheny_v._American_Civil_Liberties_Union

If you want to have a nativity scene, it helps to have a santa, some plastic reindeer, some snowflakes, and big secular tree. There's a more sophisticated legal test, but this is more fun to whine about

Sigh. I had a long post typed up and I lost it. Thanks for this response, I appreciate it. I believe we agree, except you are saying it more better.

Essentially my point, and what I believe your quotes demonstrate clearly, is that the first amendment did not make state churches illegal. Only a national church.

Further, I don't know that we can say that the idea of a state church was abhorrent based on a single quote from Jefferson to the Danbury Baptists (especially considering that his personal views were somewhat antithetical to organized religion in general), even among the founders. Webster seems to be only arguing that the Church of England was connected to England politically, and so the revolution severed that civil / political tie. The 1886 ruling seems to confirm my point, but particularly seems to be addressing the idea of a state licensing or reviewing the suitability of a preacher or priest's "orthodoxy".

I'm not saying that incorporation is wrong. I wouldn't even say, without further thought, that incorporation wasn't present in the amendments themselves as a kind of legal seed, allowing inevitably for the growth you described.

I think most people have a very anachronistic view of the first amendment. Even here you hint at it, almost implying that because something is illegal, it was illegal, owing to judgments or rulings that happened in the interim. I don't think we can say that, and I don't think we can project our interpretations backwards to the framers.

I don't know what you mean when you say state religion. That can be as restrictive as papal review of books for publication, to oaths of office or tests of orthodoxy, to something as relatively benign as a religion having "prevailing religion" status in Greece. To know whether or not the founders would have found this to be wrong, I think we'd have to be a little more precise.

The Pennsylvania constitution of 1776 is a great example of this. Oaths are an anathema, right? Because we have religious freedom. Nobody needs to confess any faith to have office or a public position as long as they believe in God and an afterlife of rewards or punishment.

Wait, what? I thought we said no oaths?

I think most colonists and perhaps the framers themselves would have held to a much less liberal or broad definition of separation of church and state, limiting it to restriction of favoring one branch of Christianity over another. "We all believe in God, right guys?" I am not sure religious discrimination of non-Christians would have seemed to them to be contrary to this spirit. But this is speculation on my part.

What it certainly did not mean was the extremely radical modern application that somehow there can be no involvement whatsoever between religion and the state. I am not as far from Watson or your opinions as it may appear. I just think it is important that whenever possible we try to guard ourselves from anachronism and time-bias when thinking about the past. It's hard.

k2aggie07 said:

---

Sigh. I had a long post typed up and I lost it. Thanks for this response, I appreciate it. I believe we agree, except you are saying it more better.

Essentially my point, and what I believe your quotes demonstrate clearly, is that the first amendment did not make state churches illegal. Only a national church.

Further, I don't know that we can say that the idea of a state church was abhorrent based on a single quote from Jefferson to the Danbury Baptists (especially considering that his personal views were somewhat antithetical to organized religion in general), even among the founders. Webster seems to be only arguing that the Church of England was connected to England politically, and so the revolution severed that civil / political tie. The 1886 ruling seems to confirm my point, but particularly seems to be addressing the idea of a state licensing or reviewing the suitability of a preacher or priest's "orthodoxy".

I'm not saying that incorporation is wrong. I wouldn't even say, without further thought, that incorporation wasn't present in the amendments themselves as a kind of legal seed, allowing inevitably for the growth you described.

I think most people have a very anachronistic view of the first amendment. Even here you hint at it, almost implying that because something is illegal, it was illegal, owing to judgments or rulings that happened in the interim. I don't think we can say that, and I don't think we can project our interpretations backwards to the framers.

I don't know what you mean when you say state religion. That can be as restrictive as papal review of books for publication, to oaths of office or tests of orthodoxy, to something as relatively benign as a religion having "prevailing religion" status in Greece. To know whether or not the founders would have found this to be wrong, I think we'd have to be a little more precise.

The Pennsylvania constitution of 1776 is a great example of this. Oaths are an anathema, right? Because we have religious freedom. Nobody needs to confess any faith to have office or a public position as long as they believe in God and an afterlife of rewards or punishment.

Wait, what? I thought we said no oaths?

I think most colonists and perhaps the framers themselves would have held to a much less liberal or broad definition of separation of church and state, limiting it to restriction of favoring one branch of Christianity over another. "We all believe in God, right guys?" I am not sure religious discrimination of non-Christians would have seemed to them to be contrary to this spirit. But this is speculation on my part.

What it certainly did not mean was the extremely radical modern application that somehow there can be no involvement whatsoever between religion and the state. I am not as far from Watson or your opinions as it may appear. I just think it is important that whenever possible we try to guard ourselves from anachronism and time-bias when thinking about the past. It's hard.

---

So while the first amendment did not make state endorsements of religion illegal at the state level, most states outlawed it anyway, so I do take issue with the characterization that it was legal to have a state religion at the time the Establishment Clause was adopted. The Supreme Court in Cummings characterizes the states as having secured freedom of religious opinion in their state constitutions. That was generally true then.

I think the backdrop of the Church of England is crucial to understanding the framer's intent. You had to swear loyalty to England and take a religious oath to hold office with goal of excluding Catholics especially. Going forward past colonization, at least one state had a religious requirement for office that the office holder be a member of the Protestant religion, and a few others required you to be a Christian. This is not framers-endorsed discrimination. The framers had a more extreme version of federalism than we do (I don't think they intended to lay seeds of incorporation at all, to be honest - they simply couldn't conceive of controlling the independent states). However, I do not think they had a more extreme version of separation of church and state than we do today. The reason the US constitution is so much more explicitly secular than the administration of the colonies at the time is that the framers only had control over the US constitution. No way would the states have ratified anything less.

I think it's pretty speculative to think the framers drew the line at some kind of theism. The framers wanted no religious oath of office for sure - it says as much in the constitution. They didn't even pray at the constitutional convention. It didn't matter much to them at all who believed in God. There are several statements from a lot of them extolling religious liberty and freedom of thought. Thomas Paine was an outright anti-theist and was one of the most influential of them - he said something like, my mind is my church. Jefferson is famous for writing, "it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg." At least with respect to the federal government and the drafters of the constitution, they were not interested in protecting general nondescript theism.

I actually think our "radical application" of separation of church and state would not exactly have met the disapproval of the vast majority of the founding fathers. The federal government was just like that from day 1. States are different - they are mostly quite small. State legislators are crazy, pandering morons for the most part. We get all sorts of constitutional challenges to state laws all the time. And as I mentioned elsewhere in this thread, we allow nativity scenes on public property at the state level as long as it's somewhat secular. To me, that does not mean radical separation of church and state. I honestly think politicians today (the last 2 decades of them anyway) are more outspokenly Christian than the founding fathers ever were.

Oaths are anathema, but they still exist on the books today in some states even though they've been explicitly outlawed since like the 40s or 50s.. They are simply unenforceable. The Pennsylvania Constitution *still says* you have to believe in God to hold office. Obviously unenforceable today. It may have been enforceable pre-incorporation, but that doesn't mean it was commonplace, well-liked, or most of all, consistent with the religious attitudes of the founding fathers or perhaps even most Pennsylvanians. How much do Texas laws reflect your values? Maybe somewhat. Law evolves slowly and mostly through test cases, and who was going to challenge that in 19th century Pennsylvania? While we're speculating, I imagine not too many Pennsylvanians were even in a position to swear to anybody but God to hold office for quite some time because they were all Christians anyway.

Law evolves slowly. We have more excess money today - we throw up "friendly" lawsuits just to see what a court will do about it. Organizations like the ACLU, doing nothing but exploring the limits of constitutional law, weren't a thing in the 19th century. If America started out as legally sophisticated and more importantly, as intellectually diverse as it is today, we would have seen the jurisprudence evolve more dramatically. We just simply didn't use courts back then the way we do today.

It's kind of unique that in America we are so concerned with the intent of the founding fathers, because pretty much nobody else in the world cares what politicians of 200 years ago thought about anything. More to the point, I don't think the evolution of American law or the kind of post-modern near-nihilism that sometimes drives its policy focus over its value focus signals a loss of honor and integrity. I think it's the opposite - we insist on romanticizing ideas that are downright primitive by comparison to the forefront of modern politics today, as a testament to the honor and sacrifice of the fathers of our country. Yes, they were incredibly intelligent, but they dealt with the struggles of their time and their laws were a reflection of those problems. I'm reminded of the kind of anachronistic international conventions that banned naval guns of a certain caliber nearly a hundred years ago. How relevant is that today?

Sorry to digress, but I honestly think we should scrap the whole constitution and write a new one. To me, the compromised integrity comes from the lack of intellectual purity in our efforts. That we try to make good policy today while balancing laws drafted in response to outdated concerns. We play games with the wording of a relatively ancient constitution in order to suit our own agendas. Let's not make it about the fathers. Let's just do what's right today.

Quote:

---

Yes, they were incredibly intelligent, but they dealt with the struggles of their time and their laws were a reflection of those problems.

---

Yes! And add to that - they weren't particularly revolutionary. Nothing in the US constitution as drafted isn't found somewhere else in history - most of it is in Aristotle's politics. They were just humans, smart enough to read and learn from history. Our constitution was the next link in a very, very long chain. It was not dropped from heaven or the first of its kind.

The bit you said - " I imagine not too many Pennsylvanians were even in a position to swear to anybody but God to hold office for quite some time because they were all Christians anyway." - is completely true. So again we have to understand this in the context of the times.

I am not particularly enamored with the constitution. The truth is our government more or less broke the constitution before the start of the twentieth century. Since then we've been stretching it to its breaking point while paying lip service. So I'm ok with your idea. But I'm not necessarily all that enamored with unlimited franchise democracy either. *shrug*