The Constitution prohibits any religious test for office. And while that proscribes only government action, the law is also meant to be a teacher. In the same way that civil rights laws established not just the legal but also the moral norm that one simply does not discriminate on the basis of race - changing the practice of one generation and the consciousness of the next - so the constitutional injunction against religious tests is meant to make citizens understand that such tests are profoundly un-American.
-- Charles Krauthammer
My Xmas* present to CK is to show that even he sometimes have something worthwhile to say, today's column overall worth reading. This includes his damning Mitt Romney for confusing the difference between reminding the religion has some role in public life (just ask Martin Luther King Jr.) and giving it a special favoritism. Some, even legal minds who wrote a book on the subject ["demanding the very kind of religious test oath that the Constitution explicitly forbids"], don't quite see the at times subtle difference.
But, even if it is not illegal, a de facto religious test is a bad idea. It is not bad to privately discriminate -- you can not marry someone because they are black or have blond hair. You can even not be their friend. Still, it is socially problematic -- surely the latter -- if you act in this fashion. Nonetheless, as Dr. Newdow noted (his latest can be listened to on C-SPAN on Saturday night at 7 P.M. EST or downloaded from the website), you are unlikely to be voted into office in most places if you are an atheist. Mitt Romney is aware that not being a Christian also is problematic.
[Update: The hearing in question was a Ninth Circuit hearing, Judge Reinhardt the top lib involved, challenging "In God We Trust" ... the motto and use on coinage. Newdow was quite good, but a previous Ninth Circuit precedent ... which he tried to avoid with Supreme Court precedent that obviously did not address the issue in particular (and included some dicta suggesting the practice is okay) ... might be an ready out for the panel.
Van Orden, the Texas Ten Commandments case [the other helped him, given it held the state could not selectively honor monotheism], suggests four justices oppose his stance with Justice Breyer's deciding vote going against him too ... this is the sort of alleged de minimis issue he can suggest isn't really divisive etc. enough to violate the First Amendment. Newdow is right on the general matter and attempts to suggest "God" isn't sectarian annoys -- religious choice involving God, or rather those who think mixing God and money in this fashion is bad, is a certain category of religious belief. It very well is "sectarian."
BTW, Newdow noted he too belongs to a "religion," including rituals and ceremony. One more vote for my broad definition of the term, I guess. Finally, there was the idea that the motto reflects our basis of rights in nature's God. First, many in this day of age think rights are based in human need and experience, not God per se. The developments since 1789 suggests the greater diversity. Second, the means used matters. Newdow himself noted that the motto alone, without the currency that provides personal effects, probably would not be something he himself could challenge in court successfully. But, like "under God" in the Pledge, the motto is often used in a way that involves each one of us, including those who not only disbelieve in God, but in mixing God and state in this fashion.
This doesn't mean he will win. But, it does mean he has a point.]
Religious belief, however, remains of some relevance. It is on some level hard to separate religious beliefs and moral and ethical concerns that clearly are relevant to public policy. Religion, to cite the last link, tends to be more than "worship, ritual and the answer to transcendent questions about the nature of God, life after death." It is some ways affects questions of policy. Just think of the sacraments -- matters of life and death and marriage are both "religious" in many ways, but public policy involves questions in both areas. It can negatively -- like other things -- affect the ability to govern. And, also interest group politics, as people from various areas of the country can relate.
The power of evangelicals in the Bush Administration has led to some troubling results, including on our policy as to contraceptives, and denying that religious faith had anything to do with the matter is dubious. I once mentioned my "concern" that the faith of some negatively affected policy. This led to a "gotcha" that I was a religious bigot. Said person, I dare say, would not think being concerned about certain Muslim beliefs was wrong. To ignore the dangers as much as the benefits of religion really belittles its power. This does religion no favors in the long run, really.
[Many books discuss how religion affects politics these days; two I found interesting are Kingdom Coming by Michelle Goldberg and God & Country by Monique El-Faizy. The second provides a more general discussion of evangelicals while the first with a subtitle "The Rise of Christian Nationalism" has a more political flavor. Other books like Middle Church by Bob Edgar and even Jimmy Carter's books, suggest religion can be a positive influence in political affairs. Sen. Obama surely thinks so.]
Various things factor in here. One is that it is often problematic when candidates make intimate matters of religious faith an important matter of their public campaign. A liberal might not be happy if someone promoted the idea that homosexual activity is bad, but s/he knows that it's protected conduct. The "bad" and "illegal" split is confused in this country, and the true consistent libertarian sort is hard to find (Ron Paul has supported some anti-abortion moves like a human life amendment).
They would not like if the person (or their religion) thought that either, but there is a difference between private faith and public advocacy. We all have some views that could not become public policy because of constitutional or other limitations. And, just because part of our religion includes something others might find troubling, it does not mean as a whole that is who we are ... or how we would govern. This starts to suggest where a line can be drawn. We should not stereotype and be wary of assuming religion is a total proxy for public policy, but it does matter, especially as part of a general mix of influences.
I linked to an essay by Prof. Marci Hamilton, a law professor who has written much on how religion has received too much favoritism, resulting in some horrible results such as looking the other way in abuse cases. Putting aside the fact that it was long been recognized that religious freedom does not mean religion trumps harm to minors etc. (e.g., Prince v. Massachusetts, 1944, involving underage labor and religious activity), she has a point, though sometimes promotes it in an unbalanced way. So, just because religion is somehow involved, the conversation should not cease.
Religion is a touchy issue for a reason, but as with equality generally, the test should be due care to avoid using stereotypical reasons to discriminate. We often, with cause, use religion as proxy for public policy. This suggests why public comments and such matter -- we should give people a benefit of a doubt, surely at least to some extent, but if they make it an issue, it is not our fault. Likewise, if their actions suggest their faith results in negative policy choices, we can note the fact. People do not act in a vacuum; religious faith has something to do with it, especially if we define the term broadly to include moral beliefs that go beyond generally accepted understandings of God and such.
Freedom of religion includes making religious choices, so it includes choosing not to have faith in God, or deciding the evidence is not there to do so. I have said in the past that I think "religion" includes a general overall stance on universal questions, the meaning of life and so forth, but some find this too broad. No matter, "religion" and public life includes not belonging to a recognized religious faith. And, moral beliefs overall factor into the debate, beliefs the are central foundations of public policy.**
It rankles a bit that certain progressive sorts rail against Romney and suggest that religion should not be an issue in politics, but do not note that other progressives constantly make shots at religious conservatives, ridiculing their faith. It is not just the policy choices, but those darn fundamentalists per se that are at issue. Ditto comments on the "Catholic Supreme Court" and how this you know will lead to conservative results. You mean like Lawrence v. Texas (written by a Catholic, following in the footsteps of another on that issue, William Brennan)?
Religion will have a place in politics, but it is one in which we have to tread carefully. On that issue, the House voted on "Recognizing the importance of Christmas and the Christian faith," the final vote: 372 (Yeas) 9 (Nays) 10 (Present) 40 (Not Voting). This is one of those bland things that most do not find fault with, though it used by others (including judges/justices) as justification for much more serious governmental establishments. After all, Presidents put forth days of prayer, thanksgiving proclamations, and the like.
And, the House officially announced it "recognizes the Christian faith as one of the great religions of the world." The resolution does talk about how "they" (Christians) view things, but is it really a good idea to single out Christianity this way? A handful did not think so, and probably a resolution without a few of the phrases found in this one would have been the better path. Or, just maybe, have a general resolution about the holiday season, recognizing the multitude of faiths as a whole. Will each get this treatment?
I think Justice Stevens handles things nicely here. Holiday reading along side of the "Night Before Christmas" and the second chapter of Luke, perhaps?
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* I used "Kafka" in a discussion of the procedures used for prisoners in Gitmo and elsewhere and one person suggested (having read it in the original German or whatever) that I didn't really understand the point of the book. Uh huh. Allusions of that sort do tend to be used loosely -- Oedipus, after all, did not know he was married to his mother or that he killed his father at the time. So, the "Oedipus complex" is a bit of misnomer. And, "Xmas" really is not a way to provide a secular word for "Christmas" since the "X" is but an abbreviation ala the Greek letter for "Christ" that in point of fact keeps the "Christ" in "Christmas."
** When Mitt Romney said that freedom requires religion, religion requires freedom, the ire of some (including Krauthammer) arose from the fact that he probably meant religion as in faith in a supernatural force of some kind.
And, many in the days of the First Amendment did think that sort of religion was required, since the law can only do so much, the rest lies in the goodness of the citizenry. They defined "religion" as "[v]irtue, as founded upon reverence of God, and expectation of future rewards and punishments." [See Stevens opinion] Some thought government needed to be involved, thus fearing Jefferson's separatist views. But, even without government, many still thought "religion" was fundamental.
Since most have some sort of faith in God that guides their life, it is fundamental. And, for those who do not, they have something that guides their life, something above the usual, that is on some level of "God," and that too is important. But, do the people Romney wants to reach want to be that inclusive?