Two-kingdom's tendentious misuse of the Establishment Clause...

(Tim) One of the lines of error Darryl Hart was pursuing in a recent comment string here on Baylyblog was that emanation from a penumbra commonly referred to as "separation of church and state." Undoubtedly, Dr  Hart and his two kingdom compatriots will judge this correction as an effort to restore those halcyon days of old when women were good looking, men were strong, children were just average, and America was Trinitarian Theist. Nothing could be further from the the truth.

We just don't want bad history to go uncorrected--even if it's bad history in the furtherance of a Lutheran cause. This, then, from a ruling elder named Brian Bailey.

* * *

"...our constitution does not recognize God, requires no religious belief for holding office, and separates church and state. How do you live in the U.S.A.?" -Darryl Hart

Dear Dr. Hart,
 
Which constitution are you referring to? If to the U.S. Constitution, it actually does recognize God: “Done in the Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven . . . .” (U.S. Const. art. VII.) Only one God could fit that description. But let's assume that's mere pious formalism...
 

In Indiana, the preamble to the modern state constitution expresses gratitude to "ALMIGHTY GOD" for the right to choose a form of government. Likewise, the people of Indiana are "secured in the natural right to worship ALMIGHTY GOD." (Ind. Const. art. I, section 2.)
 
As for separating church and state, the U.S. Constitution does nothing of the kind. The First Amendment, as written and understood for over a century and a half, doesn’t separate church and state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” “[R]especting an establishment” meant that Congress had no authority to establish a national religion; nor could Congress interfere with establishments of the Christian religion that existed in some states at the time the First Amendment was ratified. For example, the Massachusetts Constitution (1780) required “the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily.” (Part the First, Art. III.) Congress had no power to supplant, interfere with, or abolish the established religion of Massachusetts.
 
Writing in 1833, Associate U.S. Supreme Court Justice and Harvard law professor Joseph Story hit the mark:

The real object of the [First] amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. (Commentaries on the Constitution of the United States, Section 1871.)

He also wrote of the First Amendment:

Probably [at the time of the First Amendment's adoption] the general, if not universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. (Id. section 1868.)

What the Framers and Ratifiers of the U.S. Constitution and state constitutions couldn’t have gotten away with, modern judges through the guise of interpretation have managed to pull off. And I’m not referring to the formal establishment or dis-establishment of religion. I’m referring to the tendentious misuse of the Establishment Clause to attempt to expel Christians and Christianity from the public square. One notable example was a 2005 federal court order that forbade the Indiana General Assembly from invoking the name of Jesus Christ during official prayers. 
 
If only those judges had the honesty to admit they are busy imposing their own conception of enlightened public policy in a pluralistic society. Separation of church and state, as expounded and decreed by the modern court, is a sinister fiction. That Christian intellectuals tolerate or propagate such fiction is baffling.

Comments

Between 1833 and the present day, Congress adopted and the states ratified the 14th Amendment, which was intended by its drafters and has been interpreted by the courts as applying the Bill of Rights to the states. The first case applying this was Bradfield v. Roberts, in 1899.

Tim, this is a good point since the Founders could have used either the Chinese or Jewish calendars. (I wonder if they had used the Julian calendar that would make the U.S. an Eastern Orthodox nation.) But by this logic, the PCUSA, which also uses Christian dating, is an orthodox communion. (It does strike me as odd the generosity shown by Christian America types to the heterodox founders but that generosity seems to be lacking when applied to people who actually subscribe Reformed confessions. Whatever.)

But I'm not thinking of the First Amendment. More decisive here is the Sixth Article of the Constitution which says that no religious tests shall be used for anyone holding federal office. That provision allowed liberal Christians and deists like Washington, Adams, and Jefferson to preside over the greatest nation on God's green earth.

But even more decisive for Presbyterians is what the Confession of Faith says. Chapter 23 affirms:

"Civil magistrates may not assume to themselves the administration of the Word and sacraments; or the power of the keys of the kingdom of heaven; or, in the least, interfere in matters of faith. Yet, as nursing fathers, it is the duty of civil magistrates to protect the church of our common Lord, without giving the preference to any denomination of Christians above the rest, in such a manner that all ecclesiastical persons whatever shall enjoy the full, free, and unquestioned liberty of discharging every part of their sacred functions, without violence or danger. And, as Jesus Christ hath appointed a regular government and discipline in his church, no law of any commonwealth should interfere with, let, or hinder, the due exercise thereof, among the voluntary members of any denomination of Christians, according to their own profession and belief. It is the duty of civil magistrates to protect the person and good name of all their people, in such an effectual manner as that no person be suffered, either upon pretense of religion or of infidelity, to offer any indignity, violence, abuse, or injury to any other person whatsoever: and to take order, that all religious and ecclesiastical assemblies be held without molestation or disturbance."

That sure sounds like a Christian view of the state requires the magistrate to protect all people, not only different kinds of Christians, but also Mormons, Jews, and non-believers.

And to make matters worse for Christian America advocates, chapter 31 says:

"Synods and councils are to handle, or conclude nothing, but that which is ecclesiastical: and are not to intermeddle with civil affairs which concern the commonwealth, unless by way of humble petition in cases extraordinary; or, by way of advice, for satisfaction of conscience, if they be thereunto required by the civil magistrate."

It may seem odd, Tim, with all love, that the U.S. Constitution insures that no religion will be established in America. But our confession says as well that the church and the state are distinct and separate in their jurisdictions.

Just trying to make room in this great land for Rush, Sean, Glen, and Michael Medved.

Darryl,
I'm not aware of anyone, of the hundreds of comments, has advocated any sort of an Ecclesiocracy where officers of the Church rule the state by virtue of the ecclesiastical office.

You will continue talking past criticisms so long as you continue to misconstrue opposing views.

Again, as I've said before: You give to Caesar what is God's. What you call meddling with issues of the State are actually issues of mercy and are given to the Church.

If issues, like abortion, are purely political, then you, by virtue of not being aborted, are a political animal and God's Word does not speak to you.

You are exalting a temporal order above God. Stop worshiping the state.

>>You will continue talking past criticisms so long as you continue to misconstrue opposing views.

Precisely.

Love,

^ additionally, I know of NO ONE who has advocated the idea the civil magistrate may administer the sacraments by virtue of their political office.

One must wonder where Darryl is getting these sorts of ideas...it's almost like he isn't even listening.

Tim, Craig, et al, if I am wrong to assert the separation of church and state, and if Tim says "As for separating church and state, the U.S. Constitution does nothing of the kind," how have I talked past this discussion.

I understand, you don't want to be guilty of any whiff of 2k. So then what is the relationship between church and state on your view if they are not separate. Related? United?

Also, if it is possible for you to submit to Nancy Pelosi in the civil realm, and oppose women's rule in the ecclesiastical realm, you are well on your way to 2k thinking.

Welcome!

BTW, since Tim is now a stickler for correct spelling, I should have ended my the question above with a question mark.

Apologies.

Darryl,
you speak of 2K as if any here are opposed to distinct spheres of authority...I can't speak for others, but I do speak for myself.

Your view is rightly called: Radical 2 Kingdom...so it isn't 1 vs 2 categories, it is the gross perversion of the 2 being addressed. You try to create nice, neat columns when the Word has more fluidity than rigidity...the Word inform even the "secular" sphere. The faith we are supposed to proclaim is the same one we live by in this world.

We can submit to Pelosi in so far that Paul could submit himself to governing authority while speaking with greater authority to Caesar. Same for John the Baptist (evil moralist that he was, dying for something other than "the gospel"...tsk tsk).

It may confuse your categories, but that's not a strike against the Word, it is a strike against your anemic approach to the faith, the one we are to live by at all times and in all places.

Craig, if you are to live by faith all the time and in all places, and if you submit to a polity that does not recognize God, how are you living by your faith at all times? It does seem to me that your strong faith is not that different from my anemica one, because I actually try to give Christian reasons for the separation of church and state. Your view seems to put you in the position of saying you will not cooperate with unbelief, but then living in a way that cooperates with the rule of women (a sin).

I am really not trying to be a jerk about this. I would truly like to be illumined how your faith is so strong that it can live with a poltiical order (on your view) that tolerates sin. You seem to think that the inconsistency is all mine, hence leading to an anemic faith. But I see plenty of inconsistency on your side.

If you can explain how living with sin is okay on your view, then maybe I'd understand the strength of your faith. Or better, you might understand the bifurcated world that 2k is addressing.

In other words, why is your doubleness okay, but mine not?

Sorry -- another typo. Weak fingers, weak brain. It should have been "anemic" instead of "anemica."

>>to give Christian reasons for the separation of church and state.

Dear Darryl,

Did you even read this post? There is no separation of church and state. It's a fiction, legally, that you find convenient--along with those chattering classes you resemble. And even if it weren't a legal fiction, it's certainly a spiritual one. President Obama is one massive force of the idolatry of Molech ensconced in the White House. Our schools inculcate every commitment of the Whore of Babylon as their curriculum. Our law enforcement officers guard the baby slaughterhouses, thus rendering to Caesar what is Caesar's--the cult of Molech.

But hey, Caesar loves you. If you men preach, there will never be any worry wealthy church members will lose their tax deductions.

Love,

Dr. Hart,

HOw about this. The church and the state are distinct spheres.

But the church speaks prophetically to the state, and, in a republic, informs its membership of the right approach to the state, principially.

Then, in particular policy matters where the word of GOd is clear, she impresses on her people the dictates of the Christian world-and-life view.

But, she is chaste in what matters she picks to address.

That these matters admit of judgment calls, and that the church sometimes or often makes mistakes really is no argument against its prophetic voice in the larger culture, is it?

Tim,

The problem is the word, "separation." Dr. Hart has given his definition of the word, by quoting both the Constitution and the OPC/PCA Constitution. That is what he means by separation.

From what I have read, you have not defined what you mean by "separation," and that there is in fact none of it, however you define it. What exactly do you mean?

P.S. On further thought, I suppose it would be helpful to know what you mean by "church" as well when you say there is no separation between church and state. (I assume we are all in agreement as to what the "state" is in this claim, i.e. the civil magistrate.) BTW, I meant to write "U.S. Constitution" in my first use of "Constitution" in the above post.

Tim, have you read article 6 of the Constitution? Your hermeneutic is akin to Unitarianism. The Bible doesn't use the word Trinity, so it must not be in the Bible. If Congress can't establish a religion, and if congress cannot curtail the freedom of religion -- making room for Mormons and Roman Catholics and Communists -- then we have a situation where the Govt. doesn't regulate religion the way the church does. The church, then, is separate from the state. The church doesn't rule the state, and the state doesn't rule the church.

Yes, I know there are forms of overlap -- tax exemption, chaplains, etc. But the United States has never formally recognized a single religion.

Ken, I'm a little wary of the prophetic church. For every Ken Pierce, there is a Jim Wallis.

>we have a situation where the Govt. doesn't regulate religion the way the church does. The church, then, is separate from the state

That certainly isn't how the phrase "separation of church and state" is normally understood. Generally it is understood to mean little or no interface between the two and as government extends its fingers into our lives religion recedes, as we've seen with RC adoption services. Hard to square the modern understanding with the founders practice which allowed the Jefferson administration to use federal funds to support missionaries in the Northwest Territories.

Really, men; Brian Bailey has said everything that's needed. "Separation of church and state" has well-known content in our culture, and Mr. Bailey has shown that well-known content to be wrong.

And predictably, what I mean by separation of church and state is precisely what is meant by the well-known content of our culture which Brian addressed so well.

If you want to change your meaning when you refer to "separation of church and state" to some other obscure or personal content, be my guest. But it would be helpful to note your own personal meaning when you use the phrase.

Meanwhile, you've not dealt in the least with Brian's expert witness.

Love,

I beg to differ, Tim, but no, "separation of church and state" does not have a well-known or agreed upon content in our culture. People use it differently. I really, really don't know what you mean when you and Mr. Bailey says it doesn't exist. What precisely is it that doesn't exist? What do you want to exist? Which church? How would the non-separation work?

Are you an actual antidisestablishmentarian? Or do you really just mean separation of faith and state? That is, you want common grace wisdom from the Scriptures to apply to civil government? Does that extend to wanting tax money going to support food kitchens in churches and mosques (Bush's Faith Based Initiatives)? What is it you want?

Dr. Hart was not "changing" anything or offering "obsure or personal" opinions; he was actually quoting binding documents; not referring to some oral history "well known content." After all, which is obscure and personal? The U.S. Constitution and the WCF, or some ambiguous and undefined "well known content?"

I am not trying to be rude, but I really don't think you are seeing how unsatisfying it is to not even know what precisely it is you are advocating when you say that the separation of church and state don't exist, or shouldn't.

Dr. Hart, I am a little wary of church historians. For every Darryl Hart, there is a Martin Marty!

I can't believe you can't see the fallacy there, brother.

>Dr. Hart was not "changing" anything or offering "obsure or personal" opinions; he was actually quoting binding documents; not referring to some oral history "well known content." After all, which is obscure and personal? The U.S. Constitution and the WCF, or some ambiguous and undefined "well known content?"

I'm not trying to be rude but you are aware that the US Constitution does not make any reference to "separation of church and state"? Right?

>>he was actually quoting binding documents

In error, as Brian Bailey has shown. This has nothing to do with what Brian or I want; only to state categorically that what Darryl Hart declares is tendentious, lacking support in the primary sources.

Meanwhile, you've not dealt with what's written above. Don't try to pass it by. Deal with it. There are lots of words and citations. Deal with it. Argue with it. Deny it. Or better, affirm it. But don't try to change the subject. I don't take kindly to bait and switch.

Brian, I'll leave it to you to deal with anything that actually responds to your argument and citations.

Love,

All of this has got me to wondering, somewhat tangentially, where we find warrant for seminary professors in the scriptures and with what authority they address either sphere :-)

Dear Chris,

I think Tim's assuming you know the kind of history that's presented, for instance, on this page (and the following page) in the NYT Magazine: http://www.nytimes.com/2010/02/14/magazine/14texbooks-t.html?pagewanted=3

Perhaps you're unaware of these facts. If so, then this article's short history of Jefferson's letter to the Danbury Baptist ministers will help you understand this post. If you are aware of this, then your protestations here would appear disingenuous.

Your brother in Christ,

David

Dear Chris,

My latest post put up early this afternoon has a link to the article David cites, above.

Love,

Chris,

Whatever Tim and David may or may not be advocating, can we as Christians be satisfied with the "Wall of Separation" that says that Christianity is a private faith, with no public expression, that the Christian should not assert himself, not necessarily on behalf of his own well-being, but on behalf of justice for the fatherless and the widow, the victims of unjust weights and measures, the moving of the ancient boundary markers?

Abortion inevitably comes up as the unspeakable moral evil. It is by far the most grievous.

But, eminent domain abuse is egregious, too.

And, fostering cyclical dependency out of a cynical Bismarckean power ploy.

And a host of other things directly addressed by the prophets of old.

We must be those who stand for justice and mercy on behalf of those who cannot plead their own cause, when nobody else will.

Else are we not guilty of saying "Go thy way, be warm and well fed?"

Dear Tim,

One person did engage the post. I'll respond to her.

>>Between 1833 and the present day, Congress adopted and the states ratified the 14th Amendment, which was intended by its drafters and has been interpreted by the courts as applying the Bill of Rights to the states. The first case applying this was Bradfield v. Roberts, in 1899.

Dear Karen,

Bradfield v. Roberts, 175 U.S. 291 (1899) offers no support for your position. That case resolved a challenge to a $30,000 *congressional* appropriation for a hospital in Washington, D.C. (Id. at 295.) *Congress,* not one of the states, appropriated the money. The Court said nothing about the Fourteenth Amendment. The Court said nothing about applying the First Amendment to the states. In fact, the Court actually upheld the appropriation, which funded a hospital whose directors were “members of a monastic order or sisterhood of the Roman Catholic Church.” (Id. at 297.) The hospital was conducted “under the auspices” of the church, and title to the hospital’s property was “vested in the Sisters of Charity of Emmitsburg, Maryland.” (Id.) According to the Court, even if the Roman Catholic Church had “exercise[d] great and perhaps controlling influence over the management of the hospital,” the appropriation would still not amount to a First Amendment violation. (Id. at 298.)

A 1,814-page casebook published in 1996 makes no mention of Bradfield. (Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein & Mark V. Tushnet, Constitutional Law (3d ed. 1996).) The case, however, did garner a single-sentence description in another casebook, in which the editors deemed it “inconclusive,” noting that the “Court in Bradfield did not reach the issue of whether aid to religious institutions is impermissible, because it held that the hospital was not a religious body.” (Gerald Gunther & Kathleen Sullivan, Constitutional Law 1531 (13th ed. 1997).)

More to the point, the text of the Fourteenth Amendment, ratified in 1868, did not “apply[] the Bill of Rights to the states” and evinces no such intention. It makes no mention of the Bill of Rights, the First Amendment, religion, church, separation of church and state, or establishment of religion. For the first 150 years of its existence, the Establishment Clause was not applied against the states. Not until the mid-20th century did the Supreme Court transmogrify the Establishment Clause so that suddenly “Congress” meant State, or county, or township, or board of education, or state university. The first case to say that the Establishment Clause applied to the states was issued eighty years after the Fourteenth Amendment was ratified—well after the framers and ratifiers of the Fourteenth Amendment were dead and buried. Everson v. Bd. of Education, 330 U.S. 1 (1947).

Nevertheless, twelve years after the Everson decision, Justice Frankfurter, writing for the Court majority, acknowledged that the Fourteenth Amendment did not apply the first eight amendments to the states:

“We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.” Bartkus v. Illinois, 359 U.S. 121, 124 (1959).

What the courts have done shouldn’t be dignified with the word “interpretation.” It isn’t interpretation when “Congress” by degrees becomes the “Indiana General Assembly” and “establishment of religion” becomes “invoking Jesus’ name.” At best, the courts are playing word-association games with reckless disregard for the historical record. At worst, they are by fiat expelling Christians and Christianity from the public square.

Sincerely,

Brian Bailey

Tim & David,

Thanks for the link to the article. I read it; it was more about the debate on how American history should be taught in Texas schools than a presentation of historical facts, per se, though there were some included on both sides of the discussion.

I have also read many other sources on America's founding, including David Holmes, "Faiths of our Founding Fathers;" and Peter Marshall's first book (whom the article references). Marshall may be a good revivalist (I have heard him preach and have heard other fine testimonies about him), but he is demonstrably not a good historian, if any are inclined towards his interpretations. I also studied a good bit of American colonial history at Duke as a history major, so none of this is new hat to me.

But I still don't know what it is I would be affirming, what a non-separation is supposed to be, or what you all are contending the founders meant it to be. The closest thing I can find in the original post is this: "(That there should be no) attempt to expel Christians and Christianity from the public square."

Is that it? Is that what I am supposed to affirm by saying there is no separation of church and state? Do you all believe then that BY RIGHTS Christian ideals should have favored status in our land by law (as opposed to by persuasion) on account of some sort of originalist argument? Is that what this is arguing for? Or simply that Chrisitans should be heard as part of the democratic process?

My questions were not trying to be evasive or disingenuous, but to point out that simply affirming that "Christianity has a place in the public square" hardly answers what that then looks like, especially in terms of law.

Ken, no one here is arguing for a privatized faith. You know I just wrote an editorial for the local paper opposing abortion, and quoting, of all things, the Declaration of Independence. If liberals interpret separation of church and state as meaning that Christians should shut up, they are wrong. Neither does that mean we need to advocate prayer before football games.

>Neither does that mean we need to advocate prayer before football games.

While recognizing that the Constitution does not prohibit it. Just reminding folk who seem to forget, the Constitution does not call for separation of church and state. At some point it may sink in...

David Gray,

If we can pray to Jesus in the Indiana Assembly, can we also pray to Allah? If not, why not?

Do you think it was good that Federal money paid the salaries of missionaries to the NW territories? What denomination? Because I might want a refund.

Chris,

As a former lawyer (and one who was forced almost single-handedly at my time at Michigan Law to argue in ConLaw for Originalist principles) I think the crux of the argument is whether religion (any religion) is prohibited from exercising force in the public/secular sphere by "the separation of Church and State."

This is certainly how it is put forth by almost all talking heads and politicians today; and they are wrong. It is not enough to say that Christians cannot be "shut up" - the State can (and does, and must) make religious decisions. What constitutes free expression? Is peyote legal? What rights do a family have if they want to refuse medical treatment on religious grounds? What constitutes permissible exception from military service on religious grounds? How about dispensing "day after" pills?

Courts applying the laws of the land (or at least supposedly applying) have to make these decisions all the time, and invariably there is a three (or four, or five etc) part test of a balancing of interests. We have come to a point in jurisprudence where the mantra of "separation of Church and State" means that religion is not *permitted* to speak authoritatively, or that the State may not apply religious reasoning in such cases. It is a sad testimony that almost all religious cases today are argued on First Amendment Freedom of Speech or Expression grounds rather than Free Exercise or Non Establishment grounds. Non-Establishment actually was to be a boon to religion (viz. Jefferson's letter to the Baptists); it has turned out to be a curse.

Separation of Church and State was never intended to prevent the Church from entering into "political speech" (to use the phrase in its technical jurisprudential sense). It was intended to prevent the *State* from encroaching on the Church. After all, a minister (and a Presbyterian one at that!) signed the Declaration of Independence.

With no intention of speaking to you (whom I know well enough to see your intent), I have to admit, I wish non-lawyers would stop playing lawyer, or at least stop trying to instruct lawyers on what legal specifics mean. I have no doubt that if I tried to instruct an academic on his field, howls would ensue.

(1) Good post and commentary on the 14th Amendment, Brian. The facts speak for themselves, but I'll add that he's not omitting anything. And Incorporation is particularly troublesome for the Establishment Clause, because it isn't about individual citizens (unlike, say, freedom of speech).

(2) A commentor quotes a "Confession as saying: "Yet, as nursing fathers, it is the duty of civil magistrates to protect the church of our common Lord, without giving the preference to any denomination of Christians above the rest,..."

That is strange. It sounds like a self-serving political statement of a denomination that is in the minority. Does it have its origins in Presbyterians in 18th century Virginia and Massachusetts who didn't like the established churches there? Notice that it does allow the civil magistrates to give preference to Christianity over Islam. Why, then should they not give preference to the best form of Christianity?

A good practical answer is that otherwise we get into too much fighting over which denomination to establish, but that's not a theological answer. And that Confession certainly contradicts Presbyterianism in Scotland, and goes against the Westminster Confession, which says:

"Civil magistrates may not assume to themselves the administration of the Word and sacraments; or the power of the keys of the kingdom of heaven;[5] yet he has authority, and it is his duty, to take order that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administrated, and observed. For the better effecting whereof, he has power to call synods, to be present at them and to provide that whatsoever is transacted in them be according to the mind of God."

It's not a good sign that the American presbyterian churches changed their confession in a way that conforms better to American culture. I remember reading in John Frame's book review that some people complain about innovations in the church after 1700 (e.g., Jonathan Edwards's ideas), but this change seems a prime example of that, one which reaches into the confession of faith itself.

Fred and David Gray,

I take your points. I also don't like bad history being passed off as good history, like so much "christian america" history does. That is part of what is motivating me here.

It's late here and I need to head to bed, but I see now that what the original post was simply arguing for is that the Separation of Church and state, as you are describing it, is not in the Constitution, per se. I also see now that Tim B is simply wanting to stick to that original point and not actually flesh out what that means. Fine. It's his blog.

But Dr. Hart's original point is that the Constitution separates church and state. That is all he said. I think by that, he meant formal establishmentarianism (the First Admendment); Tim B says responds that that phrase means the "common cultural meaning" we all understand. Dr. Hart says no, he meant it as it is found in the First Amendment and the Sixth Article. I wanted to know, ok, then if not separation, then what? We are just speaking past each other but part of that is due to a large lack of charitable reading which is prompting these series of posts, imo.

Chris,

Did you see Dr. Hart's statement above re me and Jim Wallis? Methinks there is more at work than ye thinks there is!

I guess I need to go read his book now too, sigh...

Now, I am putting my insomniac self to bed.

>>I also don't like bad history being passed off as good history, like so much "christian america" history does. That is part of what is motivating me here.

Dear Chris,

Did you not read my post above? To remind you:

******************************

Undoubtedly, Dr Hart and his two kingdom compatriots will judge this correction as an effort to restore those halcyon days of old when women were good looking, men were strong, children were just average, and America was Trinitarian Theist. Nothing could be further from the the truth.

******************************

You write as if the very thing I deny is what must be true. To reiterate: the misty-eyed view of Colonial America is not something we have to deal with, here. This is not a homeschooling convention.

To move on to the matter of professionalization: I don't mind pastors studying and arguing law, nor lawyers studying and arguing doctrine--so long as we've each done our homework. In fact, I wish every American knew the US Constitution well enough that we could join in a corporate howl each time our justices claim the next emanation from a penumbra. They should be impeached.

>>on account of some sort of originalist argument?

No one's making "some sort of originalist argument." Rather, we're calling you back to our Constitution.

>>But Dr. Hart's original point is that the Constitution separates church and state.

This is the song that never ends. It's so hard to get men to understand that admitting an error commends a man's character. Oh well.

Good work, Brian. Thank you.

Love,

Ken, the point above was that if putting a gag rule on the Ken Pierces of the world meant the abolition of the Jim Wallis', then I'm prepared to make that deal. Otherwise, it's a free country for both of you. But I think you might want to recognize that both of you -- the religious left and the religious right -- are making the same arguments about the formal relationship between religion and politics.

To all: there is a bogeyman here in the separation of church and state that still can't eliminate the facts. Was the Church of England established? Was a similar church in the U.S. established? Did dissenting churches in England have to go through hoops for their practices in England? Did they have to in the U.S.? The truth is that in the U.S. no church determined a religious policy for the nation. And the nation did not prescribe religious teaching and practice for the churches. That hands off arrangement, after almost 1400 years of Constantinianism, is the separation of church and state.

Now, I know people here don't like that. I do. Conservative Presbyterians in the U.S. have had far more liberty to found colleges and seminaries, and practice their faith, and do all sorts of things that conservatives back in Scotland even have not been able to do. So two cheers for separation of church and state.

Of course, the reason for not cheering three times is that the freedom granted us also extends to Federal Vision, Lutherans, Anglo-Catholics and Jehovah's Witnesses. But do you really think that if there were no separation of church and state (i.e. religious freedom) that conservative Presbyterians would be at liberty to worship the way they do?

And yes, of course, you can find instances where the Protestants who did hold office acted as if Protestantism was the official religion. That changed dramatically in the 1960s. Sometimes for ill, sometimes for good. But to act as if the 1960s didn't happen, or as if Protestants should still be running the show as they did in the good old days, is not going to be very persuasive. Nor is it going to be very faithful to the laws of the greatest secular nation on God's green earth.

BTW, for those of you who think it wrong for the state to regulate Roman Catholic adoption agencies, do you really think those funds come without strings? And do you really want to see unwanted children being reared by papists?

>To all: there is a bogeyman here in the separation of church and state that still can't eliminate the facts. Was the Church of England established? Was a similar church in the U.S. established? Did dissenting churches in England have to go through hoops for their practices in England? Did they have to in the U.S.? The truth is that in the U.S. no church determined a religious policy for the nation. And the nation did not prescribe religious teaching and practice for the churches.

More apples and oranges. The arrangement you describe above is not what is commonly understood as separation between church and state.

Tim,

I take your two points re. your not trying to recreate a romantic view of Christian America and I agree with you that we need not be lawyers to try to understand the Constitution.

The problem is: you are contending for is that separation of church and state is not in the Constitution (despite article 6). Fine.

But you and Mr. Bailey still don't tell us what that non-separation is supposed to look like. Stick to the narrow point if you want, but as a non-lawyer, I am trying to understand the practical implications of such a non-separatist view.

Ignore that if you want, but if so, your argument goes nowhere useful. But as I said, it's your blog.

Peace.

>Ignore that if you want, but if so, your argument goes nowhere useful.

The problem seems to be that you and Dr. Hart are mixing what is legally permissible with what is prudent from a policy standpoint.

Here's a restatemetn of some of Brian Bailey's points, since there is a deceitful conventional wisdom, something akin to an urban myth, about the Constitution and history.

1. The US Constitution does not mention "separation of church and state".

2. The US Constitution does prohibit *Congress* from establishing a religion.

3. "Establishing" a church was universally understood to mean making one church the state religion and giving it funding. Toleration of other churches, funding of other churches, and government enforcement of morals laws were different things. In 1795, Britain funded a Roman Catholic seminary even tho Catholics could not become MPs or go to Oxford or Cambridge.

4. Congress was forbidden to establish religions, but states were allowed, and did. I wouldn't be surprised if the Establishment Clause was put in mainly to prevent Congress from disestablishing the state Puritan churches in New England.

Thus,

"Was the Church of England established?" YES Was a similar church in the U.S. established? YES--IN INDIVIDUAL STATES. Did dissenting churches in England have to go through hoops for their practices in England? SOMETIMES YES, SOMETIMES NO (NOT IN 2010, FOR INSTANCE, EVEN THO ENGLAND STILL HAS AN ESTABLISHED CHURCH. Did they have to in the U.S.? SOMETIMES YES, SOMETIMES NO The truth is that in the U.S. no church determined a religious policy for the nation. TRUE,BUT DIFFERENT CHURCHES DID FOR DIFFERENT STATES.

Darryl,

Your argument seems to be purely pragmatic which seems to allow you and other radical 2kers to speak softly instead of prophetically to those in power, and it appears that your views regarding church and state track much more closely to the Anabaptists than to Calvinists.

You write..."And yes, of course, you can find instances where the Protestants who did hold office acted as if Protestantism was the official religion. That changed dramatically in the 1960s. Sometimes for ill, sometimes for good. But to act as if the 1960s didn't happen, or as if Protestants should still be running the show as they did in the good old days, is not going to be very persuasive. Nor is it going to be very faithful to the laws of the greatest secular nation on God's green earth."

THis is no argument. It's your realization that speaking to the current culture as Protestants have historically done will likely fall on deaf ears and be highly unpopular. Well, too bad. Because we're living in the "greatest secular nation" does that mean that God is no longer sovereign over his Creation? Even you would have to admit, that despite the Constitution, the President is still subject to his Creator? And if he is,and -gasp-, some preacher were to point this out and said President were actually to acknowledge it, wouldn't this be a good thing? And what if said President began to make different policy decisions that were actually directed by his belief in a Christian god, and then actually admitted to such to the press - would you really denounce such a thing? Maybe a libertarian would, but I'm hard pressed to think that the Church should or would pronounce shame on such a declaration.

Dr. Hart,

It doesn't make sense to argue that because one side influences for the bad, the other side ought to surrender.

And I am not an unqualified member of the religious right.

It makes little difference that I am operating off the same theory as Jim Wallis. I imagine we both do benedictions, too. We probably both offer pastoral prayers, and visit congregants when they are sick.

That is hardly a compelling argument for me not to inform my people of the rationale behind political principles.

I am in no way arguing for a state church, or a church state. In fact, I know you know just how firmly Kuyper stood against that. I am arguing for sphere sovereignty, and the Lordship of Christ in every sphere. I am not arguing for legislating professions of faith, or fidelity to the gospel.

I am arguing for justice, not autonomous, man-determined justice, but according to the Law's second use (and I presume you have subscribed to Westminster's definition of that).

Christians need to influence, and, when in governance, govern Christianly, part of which is impartial justice meted out to believer and unbeliever alike.

The Scripture does not speak directly, most often, to the affairs of nation-states in the current redemptive epoch. But, it certainly speaks principially to them.

To deny that is to deny that God cares about weights and measures and property rights and widows and orphans and the poor --the very things he has declared he cares very much about.

Go thy way, be warm and well fed...

Ken,

It seems to me that the argument runs often like this:

1. Some want to the Church to influence the State's upholding of the second table to the Law.

2. Some others (far fewer) want the State to uphold both tables of the Law, and hence legislate belief.

3. As a result, some see the error in #2 and want to prohibit #1.

Fred,

I love that you have a lawyer's brain, and a pastor's heart.

I think you have your finger on it, my good friend!

Fred,

I think there is a sense in which your point #2 could be upheld to some degree without legislating belief. To wit, the assemblyman's oath from Pennsylvania's 1776 constitution:

"I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration.

And no further or other religious test shall ever hereafter be required of any civil officer or magistrate in this State."

Clearly a preference for Christianity on the whole but largely free of sectarianism. And the strictures are for holders of public office, not all citizens.

We could argue whether or not Pennsylvania's oath made for good or even Christian assemblymen, but at least they rightly recognized that the God of the Old and New Testament was the god of true religion, and that one's recognition of or submission to this fact was a good quality for lawmakers to have.

Ken Patrick,

You may be correct, but it was my impression that the Baylys are arguing for #1 (above). And while I would have a good conversation about #2, it seems to me that to argue against #1 is to argue against the Bible's view of the role of Church and the role of the magistrate.

Blessings,

Fred,

I think you made a typo in your last post. You cannot mean that the Bible supports #2. Or else you would need to take an exception to WCF 23.3!

Chris

Yikes! You are correct Chris.

I meant to say that to argue against #1 (that the Church should influence the State's upholding of the second table to the Law) is to argue against the Bible's view.

Chris,

There is nothing in (Americanized) WCF 23.3 that prevents a magistrate from enforcing all Ten Commandments. No exception required ... except in the R2K world.

As Ligon Duncan notes, "... [Meredith Kline] mistakenly thinks that the American revision of 23:3 intended to deny the magistrate the right to enforce first table commands. Actually, the revision was primarily intended to move the confessional position of American Presbyterianism from the "establishment principle" to "voluntaryism," and to secure the church from unlawful government interference."

Tom

Tom,

OK. That may well be, historically. I don't suppose anyone is arguing for arresting people for going to see "The Passion of the Christ," though, are they? I was mostly pointing out Fred's typo.

Chris

Tom, how exactly would the magistrate enforce doctrines about blasphemy or idolatry given the language of the WCF: "It is the duty of civil magistrates to protect the person and good name of all their people, in such an effectual manner as that no person be suffered, either upon pretense of religion or of infidelity, to offer any indignity, violence, abuse, or injury to any other person whatsoever: and to take order, that all religious and ecclesiastical assemblies be held without molestation or disturbance."

That would seem to include Roman Catholics and Mormons, not to mention Richard Dawkins.

Just wondering.

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