Monday, September 05, 2011

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.

Over the weekend I caught part of a show on the radio talking about how the mayor of New York has declined to invite to his 9/11 memorial service any of the first responders or anyone who might have been expected to say a prayer in public for the victims of the WTC attack.

Whatever the real reason, it strikes me as a profoundly tacky and misguided attempt to honor the separation of Church and state, just for starters.

As far as that was part of Mayor Bloomberg's motivation, it's also representative of a larger movement to more broadly and thoroughly enforce the Establishment clause.  This trend in Constitutional philosophy is troublesome where the prohibition of establishment is exalted over the prohibition against inhibiting free exercise, and it is promoted in part by misguided sensitive, considerate believers as well as by nonbelievers who feel oppressed by the existence of people from the first group.

The conflict leads to many questions about the relationship between Church and state in this country.  Many governmental bodies (including a few in New York) open their sessions with a prayer by rule and not just by tradition or convention; "In God we trust" remains on all our money; "God Bless America" is often sung at sporting events.  Should these things be stopped?  Should such pious practices be allowed--tolerated, so to speak--but no sign of condonation be made, as long as they are not disruptive (for reasonable levels of disruption, which I will not argue here)?  They've tried to stop prayer in schools,  such as at graduation ceremonies and before football games, but where the laws get overly broad, as the bumper sticker says, "As long as there are tests, there will be prayer in school."

So it occurred to me that maybe we're asking some of the same kinds of questions that come up in the torture debate--questions that that tend to further torture because they muddy rather than clear the waters. When we ask "How harshly can we treat someone before it's considered torture?" with the purpose of deciding what types of positive or negative punishment may be applied to gain compliance in a subject, then we've already crossed a moral line with regard to intent.  As I've said before, I don't believe that mild discomforts or inconveniences inherent to incarceration are properly torture, but if our guiding star is "how much can we get away with," then we're asking for trouble and committing a grave evil against our fellow man becomes a question of "When?" instead of "If...."

What does torture have to do with the price of eggs in China?

The matter of the relationship or lack thereof between Church and state comes up all the time, and whether it's a slippery slope argument bemoaning the repression of longstanding traditions of public prayer or a thinly veiled attempt to trick or convince everyone that formal oppression of religion is real freedom, or something reasonable in between, it often seems that the harder we try to figure out what religious activities the state should keep its nose out of and what the state should butt into in order to protect the interests of people of different religious persuasions, the harder it is to get a clear picture.

So, maybe we're asking the wrong questions.  Maybe "What infringements are reasonable?" only has wrong answers.

Maybe, if the state can't do it right, the state shouldn't be doing it at all.  Don't get involved in things where there's a conflict amongst believers, or between believers and nonbelievers, unless actual violence occurs.

It wouldn't be unheard of.  Laws have been overturned before on the grounds that they were prohibitively difficult or impossible to enforce.  I can't think of a law that has been overturned because the only available means to enforce it happened to be prohibited by higher laws, but if "protection from association with religious believers" rulings were challenged, I don't think it would be much of a stretch to frame the argument in these terms.

But I'm not a law scholar.  I haven't come up with any answers.  I just thought it was an interesting question to throw out there.