Made Up Histories For Self-Serving Lawmakers

Religious Liberty, properly understood, is in fact essential to a functioning democracy, despite modern efforts to redefine Religious Liberty toward more authoritarian ends. The American Founders were unambiguous about this, and regardless of what one chooses to determine about their personal moral characters, looking down imperiously from the vantage of the present, their revolutionary insights were born of proximity to a history of brutal religious conflict and tyranny. Their loyalty, it appears, was in bringing a functioning, peaceful social order to their nascent republic.

Today, our public officials swear an oath to the Constitution, which demands of them that they act as neutral administrators, treating all manner of religious opinion equally under the law. Perhaps we would not be in the dire state of democratic backslide that we are in if we took the necessity of that oath seriously enough to codify the disqualification of those public office-holders who make clear, openly and explicitly, that their first loyalty is instead to their religious tribe. As it is, however, it is not now uncommon to find candidates running on platforms unmistakably hostile to the First Amendment, in favor of advancing self-serving, exclusive, official religious preference.

Instead of formally disowning the Constitution, these regressive religious tribalists insist that they are possessed of a clearer understanding of what the Founding Fathers actually meant by “Religious Liberty.” Absurd though it is, it is now often insisted that by “religion,” the Founders were referring only specifically to Christianity, and it was for the rights of Christianity exclusively that Religious Liberty was conceived to protect the Christian faithful from encroachments of the government. All that is required to accept this narrative is to know little or nothing at all of what the Founding Fathers actually wrote, and essentially nothing of history itself. Jefferson himself wrote, in his autobiography, that Religious Freedom was meant to protect, “the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.”

These were not cave-dwellers completely ignorant of the diversity of the world’s religions. Nonetheless, Christian Nationalist lawmakers attempt to bypass the facts of history by embedding their fantasist revisions of history into legislation. Thus we see bills demanding displays of the 10 Commandments in public schools or civic spaces on the pretext of honoring a “heritage and history” that never existed. The true religious American heritage and history, established upon our becoming an independent state, is that of a secular nation that allows the government no authority in dictating the deepest inner beliefs of the diverse public that it acts to serve, not command. If we fail to limit the government in this way, we are likely to fail to limit the government in any way.

On Monday, “more than two dozen Texas families” composed of various faiths filed a petition asking the Supreme Court to deliberate on their challenge to a law, upheld by the 5th U.S. Circuit Court of Appeals, requiring that “Texas public schools must permanently display a state-mandated version of the Ten Commandments, drawn from the Protestant King James Bible, in a ‘conspicuous’ place in each classroom, from kindergarten through 12th grade,” according to a press release from the Freedom From Religion Foundation.

As the Friendly Atheist points out, the Fifth Circuit ruled in favor of the 10 Commandments law despite a “virtually identical law” being adjudged by the Supreme Court to be unconstitutional nearly 50 years ago in Stone v Graham. The Fifth Circuit justifies this by citing the Supreme Court’s decision to discard the Lemon Test when ruling in the case of Kennedy v Bremerton, in which it was decided that a high school football coach somehow was not violating the Establishment Clause by praying with his team at the 50-yard line.

The Lemon Test stated that “for a law to comply with the Establishment Clause, it must (1) have a secular purpose; (2) have a predominantly secular effect; and (3) not foster “excessive entanglement” between government and religion.” It served the Court well, when the Court was concerned with upholding the Constitution, but in deciding Bremerton, the majority determined that Lemon was altogether too vague and confusing, unduly restrictive to completely private acts of religious devotion (such as making a show of one’s religion while on public display and performing the work of a public employee), and that instead courts should consider the even more vague and confusing concept of “heritage and history.”

The Fifth Circuit, when deciding in favor of mandatory 10 Commandments displays in schools, found that since Lemon was no longer in play, the precedent set by Stone no longer was applicable. But, just as there is no history that supports an attention-seeking blubbering sack of shit like coach Kennedy—who even after winning his case at the Supreme Court publicly tells his tale, weeping on cue without fail at the perceived injustice of his ongoing victimization—praying at a 50-yard line with a high school football team, nor is there a history of 10 Commandments displays in schools.

Incidentally, Arkansas is appealing the ruling against the 10 Commandments monument that resulted from our lawsuit seeking to place the Baphomet at the Little Rock capitol under the same legal rationale with which the state justified the Decalogue. Here too, it appears that they will rely on arguments for “heritage and history” despite there being no real history of public 10 Commandments displays extending back to the time of the Founding Fathers, and despite endless references to Religious Liberty as it was presumably understood at the time of the founding. “Heritage and history,” as embedded in the Bremerton ruling, is now obviously seen as a carte blanche to demand exclusive religious access and exemptions for Christians, regardless of actual history, and on the strength of nothing more than fantasies about what the Founders meant, contrary to what they actually said. If the appeal goes our way, and even if it does not, our case will almost certainly be petitioned to the Supreme Court as well.

The outcome of these cases could not have more potentially dire consequences for life as we know it, and for the future of democracy. It goes well beyond the displays themselves and straight to the question of the limits of the authority of the government to place our inner beliefs and private conscience in the purview of their authority. The official acceptance of exclusive, specific viewpoints opens old wounds, shatters a long peace, and sows resentment in communities that may have long set such things aside. It is irresponsible and idiotic for our courts to undo our actual heritage and history of pluralistic neutrality. When that long-established history comes to end, we are left with nothing but new problems, and we will have seen the death of Religious Freedom… in the name of Religious Freedom.