Another Unwelcome Amendment

Please be sure to read all three Notes at the end of this post.

The religious right is hell bent on slipping in state-sponsored religion any way they can. Two different strategies were proposed today, both revealing in that they ignore the proper role of the government as the protector of individual rights.

First, there appears to be is (See Note 2 below.) a move afoot (Old article: See Note 1 below.) to propose a constitutional amendment to "guarantee equal treatment for religious speakers, groups, and ideas in the public sphere," as if freedom of speech is not enough. The alleged need for this amendment arises from the fact that our government is forbidden to establish a state religion and yet it is heavily involved in education. This involvement in education necessarily involves the government in propagating ideology, leading to all manner of ideas being promoted in the public schools, except, hold proponents, the Christian religion. (See also Ann Coulter, below.)

First, when private persons (including students in public schools) are permitted to engage in speech reflecting a secular viewpoint, then speech reflecting a religious viewpoint should be permitted on the same basis. [Obviously, this is a way to get religion taught at taxpayer expense. --ed]

Second, when the government provides benefits to private activities, such as charitable work, health care, education, or art, there should be no discrimination or exclusion on the basis of religious expression, character, or motivation. Religious citizens should not be required to engage in self-censorship as a precondition to participation in public programs. (This idea was incorporated in the Senate welfare reform bill.)

This author is more concerned with getting a slice of the government funding pie to teach his religious views than with "equal treatment." Otherwise, he would advocate abolition of public education on the grounds that it takes money from some taxpayers to promote ideas they oppose. In other words, the religionists would "leverage" one form of government interference, public education, to get another, government-funded religious instruction.

Failing that, Ann Coulter has suggested a new, ingenious perversion of the concept of states' rights. After providing a long laundry list of ideas funded by taxation (which is worth a look.), Ann Coulter proposes -- not an end to government interference in the marketplace of ideas -- but the misuse of states' rights to establish, I suppose, 50 state religions!

I don't want to hear any jabberwocky from the Court TV amateurs about "the establishment of religion." (1) A Ten Commandments monument does not establish a religion. (2) The First Amendment prohibits Congress from making any law "respecting" an establishment of religion -- meaning Congress cannot make a law establishing a religion, nor can it make a law prohibiting the states from establishing a religion. [bold added]

Really! Well! Let's examine the rest of the First Amendment and see what else that maverick of constitutional law, Ann Coulter, also implies that the various states can do away with.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So I guess Coulter would also say, "Congress cannot make a law prohibiting states from abridging freedom of speech, or of the press, ...." While she might be correct (Or not: See Note 3.) in a very legalistic sense, all 50 states would have to enact such legislation at once, thanks to that pesky first clause of Article IV, Section 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Leaving aside the fact that individual rights are not granted by the Constitution anyway, it would be obvious to anyone but Coulter that the Tenth Amendment is not intended to provide a way to subvert federal law, but to allow states to handle local matters not worthy of attention at the federal level and not contrary to the obvious purpose of the rest of the Constitution.

Furthermore, recall what I noted about the supposed enthusiasm for states' rights on the part of the religious right we saw during the Schiavo fiasco.

The religious right don't give a damn about states' rights (or individual rights for that matter). Interestingly, the fact that they so quickly jettisoned their enthusiasm for the concept in the Schiavo case reveals why they were so enthusiastic about it in the first place! [i.e., The concept of states' rights gives them a way to sneak their agenda in when they can't do it at the federal level as Coulter demonstrates here. --ed]

Ann Coulter, I believe, had suddenly become a big fan, first of the federal government running over Florida's rights as a state, and then of the rule of men and not laws during that time. (Quoting from TIA Daily reference.)

Coulter approvingly quotes this declaration of lawlessness from one of America's worst presidents:

"President Andrew Jackson is supposed to have said of a Supreme Court ruling he opposed: 'Well, John Marshall has made his decision, now let him enforce it.' The court's ruling was ignored. And yet, somehow, the republic survived."

So much for Ann Coulter's high regard for the Constitution. If she'll junk it in an "emergency," I somehow doubt that she's above twisting it for less time-sensitive puposes, like the establishment of fifty theocracies. Someone who approves Jacksonian despotism is contemptuous of individual rights.

Does Ann Coulter really want a state religion, or fifty of them? Does the author of the first article, Michael McConnell? Are they ignorant of the implications of religion being above the law or just hoping everyone else remains so until it is too late?

-- CAV

Note 1: I missed this yesterday, but the article is a decade old. Interestingly, it was indexed (This link should soon move.) by RealClear Politics yesterday evening. I take this to be evidence of renewed interest in the idea.

Note 2: Via TIA Daily is a July 1 story in the New York Times about the introduction of just such an amendment. (On the bright side, this also reports an effort to limit eminent domain.)

Earlier in the day, Representative Ernest Istook, Republican of Oklahoma, stood on the Supreme Court steps to announce a constitutional amendment, backed by 109 House members, including 5 Democrats, that would protect references to God on public property.

"This amendment will protect displays of the Ten Commandments, in Kentucky as well as in Texas," Mr. Istook said in a prepared statement. "It will protect the words 'under God' in the Pledge of Allegiance. It will protect the ability for schoolchildren to pray at school, individually or together. It will protect our national motto of 'In God we trust.' "

I wish our lawmakers would worry less about making Christianity the state religion and more about protecting individual rights.

Note 3: Reader Adrian Hester notes that my Constitutional argument against Ann Coulter is wrong and provides a far better one. Quoting his comment in part, and linking to the 14th Amendment:

More generally, and this is where her argument falls flat on its face, Congress has been allowed by the courts (under the authority given it in Article IV, Section 1 to "prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof") to regulate matters notionally under the clause if they're matters of public policy. (Banning polygamy in Utah fell under this, I think, despite Mormons' arguments for religious freedom, and when the Supreme Court declared anti-miscegenation laws unconstitutional in 1967, it did so on the grounds that the 14th Amendment trumped states' rights to regulate marriage as they saw fit, and thus implicitly the Full Faith and Credit clause.) Despite Coulter's hair-splitting, I'm sure any state that enacted a state religion would have it struck down on the same grounds--if the 14th Amendment is a matter of public policy exempt from the Full Faith and Credit clause, then surely the 1st Amendment is too.

My thanks to Adrian Hester for taking the time to leave his comment on this.

Crossposted to the Egosphere

Updates

July 1, 2005: (1) Added Note 1. (2) Added news link and excerpt as Note 2. (3) Took question mark out of title. Gotta love the religious right....
July 3, 2005: Added Note 3 and prefatory remark.