Masterpiece Cakeshop Supreme Court Case: Protecting Both Gay Rights and Religious Freedom

In one form or another, cakes have been a sweet dessert that have been used to celebrate birthdays, anniversaries, and weddings. You can tell when times are contentious and polarized when cake becomes a theme fought over in a Supreme Court case. This brings us to the oral arguments that the Supreme Court are to hear today for the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The premise behind the case is that a same-sex couple, Charlie Craig and David Mullins, went to Masterpiece Cakeshop in 2012 to buy a custom wedding cake. The owner, Jack Phillips, refused to create wedding cake for same-sex couples due to his religious beliefs. Although another baker offered to bake Craig and Mullins a wedding cake, the couple decided to file an anti-discrimination complaint under the Colorado Anti-Discrimination Act. The complaint escalated to the point where the Supreme Court is answering the question of whether the baker had his freedom of speech or religion violated per the First Amendment. There is more information and analysis from the SCOTUS Blog, but what I would like to explore is which side has more merit and what implications this has going forward.

The concern of those in support of the defendant is that allowing for this sort of discrimination will open the floodgates to remove anti-discrimination laws and allow for a "constitutional right to discriminate." Let's look at the discrimination more specific to the case and then let's go more broadly. A wedding cake is not a key component of a wedding. Even if you argue that a cake were that vital to a wedding, Craig and Mullins could have found a different baker. With nearly two out of three Americans support same-sex marriage (see below), it is conceivable that they could have found another baker. As a matter of fact, another baker offered to provide the couple a wedding cake at no charge.

This brings up another question: should Phillips be coerced to bake a cake for a same-sex wedding, even though his religious view is that marriage is between a man and a woman? If the answer is "yes" and anti-discrimination laws end up being interpreted in such a fashion, then the government would also be able to compel a Jewish baker to bake a non-kosher cake with a swastika for a neo-Nazi wedding or a neo-Nazi event. An African-American woodcutter could be compelled to create a wooden cross for a KKK rally, or a staunch Democrat caterer cater for a Trump rally. It would mean that Facebook could not ban white supremacists from posting racist dribble. Whether or not the Supreme Court rules that baking a cake is an artistic expression protected under the First Amendment (see arguments for and against), what worries me is whether the government has the right to compel an individual to produce something that violates their conscience.

I made this point three years ago when discussing price discrimination: producers have a right to produce their good or service for whomever they like. If a proprietor refuses to serve a certain clientele, then that is their poor business decision to make. In 2017 America, there are plenty of bakers that will take the business of same-sex weddings because profit motive. If a Christian baker refuses to serve a same-sex couple, that is their right. The reverse is also true. Take a look at what happened earlier this year. A gay coffeehouse owner in Seattle kicked out Christian anti-abortion activists from his place of business. Regardless of how you feel about abortion or Christianity, it was the gay proprietor's choice to not serve the Christian activists.

The ultimate question is how we find the balance. This is a tricky Court case because the Supreme Court needs to balance two major components of a free society. On the one hand, we need to have freedom of religion, conscience, and association. After all, it was the pursuit of that freedom that was the basis of founding the United States. At the same time, civic equality is a necessity for a free, democratic society. Yes, it is true that more and more people are supporting LGBT rights. Situations like the one that precipitated this Supreme Court case will thusly become less prevalent. Conversely, individuals within the LGBT community have gone through more than plenty of discrimination. Although there has been general progress towards civic equality, there are legitimate concerns that we, as a society, take steps backwards. That is the quandary: I don't want a society where the government coerces people to act against their own conscience, and I don't want a society with discrimination against an entire group of people.

I pondered this very question of how to strike this balance between religious freedom and civil liberties five years ago. The summarized version is that "your religious rights end where another's rights begin." What this means in this case is that Phillips does not have to bake cakes for same-sex weddings. Although I strongly disagree with Phillips' views on same-sex marriage, it is his right to hold those views. At the same time, Phillips does not have the right to force the government to stop same-sex marriages of two consenting adults simply because those are his religious beliefs. This is where we draw the line in a civilized, pluralistic society. Phillips has the right to bake cakes for whichever clientele or whichever occasions he so chooses. If he wants to lose out on making money, that's his own decision. Craig and Mullins, as two homosexual adults, have a right to enter a consensual contract of marriage. This is how we respect both the civil liberties of LGBT people and religious freedom: protecting individual rights. I also believe getting to know people who are different from you goes a long way in understanding where others are coming from, even if you don't agree with them.

How should the Supreme Court strike this balance? The gay rights movement already won the intellectual argument and is winning the moral high ground. This country does not need anti-gay backlash from this case, which is another reason why coerced nondiscrimination [from the Supreme Court] is not the best course of action in the long-run. I think that both sides have valid arguments, but that the Court should rule in favor of Phillips. If the Supreme Court rules in favor of Phillips, it should narrow the scope of the ruling and the exemption (e.g., wedding-related businesses, commercial institutions in competitive marketplaces) as much as possible so that it doesn't infringe on the rights of LGBT individuals. That way, we can protect everybody's rights instead of throwing people and their right to life, liberty, and pursuit of happiness under the bus.

Should Creationism Be Taught In Schools? What About Intelligent Design?

Back on Tuesday, Bill Nye the Science Guy duked it out with creationist Ken Ham over the debate of "Evolution vs. Creationism." I provided the footage of the debate down below.

Since my academic background is primarily in public policy, I'm going to stay away from the scientific jargon as much as possible. What I would like to do is discern the issue from a public policy standpoint and determine whether theories such as creationism and Intelligent Design (ID) should be taught in schools.

Before answering the question, I should first specify the sort of schooling towards which this questioning is targeted. This is not geared towards homeschooling because in spite of accreditation requirements, parents who homeschool their children have more latitude in what they teach their children (As a side note, I am interested by the fact that even with the disproportionate amount of home-schooled children being Evangelical Christians, there is a growth of secular, home-schooled children). Similar arguments can be made for private schools, and to a lesser extent, charter schools. This primarily leaves us with the question of whether these theories should be taught in public schools.

This leads us to the next question of "what is scientific theory?" When used in the world of natural sciences, the word "theory" does not mean "a set of ideas that are presented to explain something, but may or may not be true." When we say "scientific theory," we mean to say "a well-substantiated explanation of natural phenomenon that can be confirmed through observation and experimentation via the scientific method." I remember when I was in college, I took a course of the physics of light, and there was a lot of debate as to whether light was a wave, particle, or a combination of both. Even with the debate, there were still a set of high standards that was applied to the scientific inquiry.

Now that we have a better grasp of "scientific theory," let's move over to the differences between Creationism and Intelligent Design. Just for the record, these are not synonyms. According to Webster's dictionary, Creationism is "the belief that G-d created all things out of nothing as described in the Bible, and therefore the theory of evolution is incorrect." Creationism is a sectarian ideology based on biblical literalism, a literalism that I find to be irksome. Creationism is not taught with secular intent. Creationism should be left for Sunday schools, not for public schools. Doing otherwise would be a violation of the First Amendment.

Intelligent design, on the other hand, simply states that an intelligent, powerful being created the universe in a directed process. Note that the theory of intelligent design does not postulate who the designer is. It could be G-d, الله, or one of the deities from polytheistic religions. Heck, it can even be the Flying Spaghetti Monster, and it would still be a form of intelligent design! The notion that the universe was created by design, rather than random mutations, is not an argument that inherently religious in nature. What's more is that there actually is a cogent case to be made for "design in nature," whether it comes in the form of the fine-tuned universe argument, cosmological argument, or the specified complexity argument. To secularly argue that there is intelligent design has a lot more validity than arguing that the world was literally created in six days and that the world is literally about six millennia old.

Before I go into the policy analysis, just a few words on how I personally feel on the matter. Unlike most of America, I do not find a dichotomy between science and religion. Science explains the "how," and religion explains the "why." Let's say that natural selection and random mutations are undeniably the mode through which we came into being, which based on discerning what I can from the scientific evidence, it's the most probable scientific explanation. I don't care because it does not violate my understanding of Torah in the slightest, and it does not shake my belief in monotheism because evolutionary theory and Judaism are not mutually exclusive. There's no contradiction in me being a theistic evolutionist.

In an ideal education system, I would like for school to be an institution in which students can openly discuss and debate varying points of view in a respectful, civil manner. This is why I am certainly not going to advocate for removing evolution from the classroom, but I'm also not going to say that evolutionary theory is as "open and shut" as one would like to think because it's not. With regards to this particular topic, the debate is framed in terms of "science versus religion," which is problematic. Creationists like to view their opponents as g-dless, condescending heathens, and evolutionists like to view their opponents as Bible-thumping troglodytes. Until people frame the debate in terms of "Was nature created by design or randomly," we're going to be stuck in this uncouth stalemate that perpetuates the idea that there is nothing in between atheistic evolutionist and creationist that would actually create a spectrum of viewpoints on the issue.

One of the simpler solutions, which evidently has a libertarian twist, is to get the government less and less involved in the education sector. A competitive market in education might not have answered the question of "Was nature created by design or randomly," but it would have mitigated the political tension by now. At the very least, we can think about policies (e.g., tax credits, school vouchers) that could allow for lower-income families to have better access to the education marketplace. Although there is some potential for allowing additional privatization of education, it would be relatively more prudent to figure out what to do with the public school's current K-12 curriculum.

Even if I am a proponent for more privatized education, we should still aim for a higher standard of intellectual discourse in our public schools as long as the public school system still exists. What could be done is seeking out some schools willing to pilot a science curriculum that can teach biology, as well as present cases both for evolutionary theory and intelligent design in a relatively fair, unbiased manner with supporting evidence for each side. If it's a success, then other public schools should take a cue from its success and implement it themselves. With that, we can theoretically preserve the First Amendment without having to quash intellectual debate (more on that below). It would be great to see ID taught in a secular fashion, as well as a reasonably objective one. However, I think this would be asking for too much with a country that is so divided on the issue. Not only that, an issue I find with the theory of intelligent design is that it does not meet the standard of falsifiability, which could arguably put ID out of the realm of the scientific method because even if there were unquestionably a designer, who is the designer responsible for the universe's creation? The interplay between evolution and how it relates to religious beliefs can be debated in a social studies or politics classroom. This alternative would allow for the discussion to be had, but to "leave science in the  science classroom," which would a compromise from my view, but something tells me this would not be an acceptable policy alternative for creationists.

I am thinking that in an American context, tweaking the curriculum without altering it greatly would work best because my main concern is that ID would be used as a gateway to advance the agenda of creationism (see Epperson v. Arkansas). With that in mind, if only evolutionary theory is to be taught in the science classroom, it should at least be taught with a presentation of its strengths and weaknesses, as opposed to being unquestionable dogma, so that students can understand evolutionary theory from all angles and allow for enough intellectual wiggle room in the event that evolutionary theory is incorrect. Although part of an education is teaching facts, the other part of an education is to enable students to think analytically and be able to problem-solve, which this latter policy alternative would permit. This curriculum stipulation would allow for students to think openly and critically while not having religion shoved down their throats or freedom of inquiry stifled. Given the political climate, this would be the best policy alternative to the status quo.

When Does the Violation of One's Religious Beliefs Actually Matter?

Yesterday, I listened to this two-person panel sponsored by the local Federalist Society. The speakers were Professors Richard Duncan and Ann Althouse, and they spoke on "The Constitutionalization of the Sexual Revolution and What It Means for Religious Liberty, Federalism, and Self Government." It was a lively discussion on the line we draw between religious freedom and civil liberties, specifically those in the sexual realm. I had a bit of frustration with Professor Duncan because he kept going back to the example of how Catholic adoption agencies in Massachusetts cannot turn away gay couples looking to adopt because if they do, the agencies would be violating anti-discrimination laws, which made him sound very one-sided.

At the end of the panel, I started asking myself a lot of questions. Should religion have as much influence in the political sphere that it does? Should the government have influence over one's religious beliefs? Should the religious beliefs of a vocal minority, plurality, or even a bare majority have any bearing on policy? In short, what constitutes as a legitimate violation of religious freedom and what constitutes as an encroachment on freedom that is merely disguised as religious freedom? When should I care that your religious beliefs have been violated, and when should I tell someone to "just deal with it?"

Constitutionally speaking, there's this little thing called the First Amendment. There are two relevant aspects of it: an Establishment clause, which states that the government cannot establish religion, and the Free Exercise Clause, which gives individuals a pretty wide range to practice one's religion in peace.

As a libertarian, my take on religion is that as long as you are not harming anyone (i.e., the nonaggression axiom), you can practice your religion as freely as you like. This rule applies to all, which means that an individual cannot impose their religious beliefs on other individuals and cry "that was a violation of my religious beliefs" when that individual doesn't get their way. I'll use myself as a hypothetical example. I have the right to keep kosher in accordance with Jewish dietary laws because that's part of my freedom of religion. I do not, however, have the "right" to either force others to keep kosher or even force all restaurants to adhere to Jewish dietary law. At the very least, you'd have a lot of people become angry because eating bacon cheeseburgers or shrimp would become illegal. Policy should not be enacted simply because it violates an individual's sense of religious right or wrong. Otherwise, it would become an argumentum ad absurdum very quickly.

So how do all these factors get applied to modern-day politics and policy?

1: Gay marriage. As I have argued before (see here, here, and here), same-sex marriage is not only a civil right dealing with equality, but it is a matter of contract rights. If you're on the Religious Right and you think that same-sex marriage is "an affront to G-d," then my advice to you is don't get married to someone of the same sex. You have the right to believe same-sex marriage is wrong (and I also have the right to disagree with that assertion), but you don't have the right to impose your religion on other people. A ban on same-sex marriage based on religion is as tenuous as my argument of making everyone in America adhere to Jewish dietary laws: it has no place in a free society.

2: Gay adoption. If we go back to Professor Duncan's main grievance, he brings up there being an issue with anti-discrimination laws, and I agree. Do I personally like the anti-gay discrimination of the Catholic adoption agencies? Absolutely not! In spite of that, I do have to respect the Catholic Church to run their private institutions in whichever way they would like. Fortunately, the Catholic Church's views do not stop a gay couple from exercising their right to adopt, especially considering that there are other adoption agencies out there that are more than willing to allow same-sex couples adopt. And as a side note: if we are to respect the Catholic Church as a private institution, then they shouldn't be receiving government funding. Otherwise, deal with the strings that are attached!

3: Anti-discrimination laws. Being a libertarian Jew, I have very mixed feelings about anti-discrimination laws. On the one hand, I know discriminating against employees based on something like religion, race, gender, or sexual orientation is wrong. Employers should select employees based on their skills. On the other hand, the notion of property rights allows proprietors to run their businesses however they want, regardless of how idiotic or immoral their discrimination is. This sort of idiocy does end up being punished. There is a reason why more and more businesses are being pro-LGBT: it's good business. Once the momentum for a civil rights movement begins, the trajectory is in favor of progress and equality. Businesses realize that as time goes on, more people will be pro-gay rights, which means that over time, being anti-gay is poor business strategy.

4: Obamacare and Birth Control. Another unintended consequence of Obamacare is agitating the Catholics with a birth control mandate that even extends to non-profit organizations. The Catholic Church doesn't want to be forced to provide something that they find morally objectionable. I believe women should have access to birth control. Conversely, birth control is not a right; it is an economic good. Birth control should be freely accessible in the marketplace, not at the bequest of a government mandate. Do the rights of the Catholic Church matter here? Yes and no. I agree with the Catholic Church, but for different reasons. They complain that their religious views are being violated, but that's not the issue per se. The real issue is that their economic rights are being violated. They should not be forced to pay for something they don't want, all the more so if they find it morally problematic.

Conclusion: The search for religious freedom is what led the Puritans and other persecuted religious minorities from the Old World to America. Religious freedom is considered sacrosanct in this country. Respecting the individual's freedom of religion means not infringing or imposing upon another individual's freedoms. Atheists can be offended or annoyed by religion, but that doesn't give the atheist the right to destroy or close down houses of worship. People were offended by Dan Cathy's anti-gay remarks, myself included, but that doesn't mean we go about banning Chick-fil-a restaurants. Boycotting is the best response to Dan Cathy and his ilk. If an evangelical Christian parent is offended that the public school teaches evolution or doesn't allow prayer in the classroom, that parent can either send their child to private school or have their child home-schooled.

To summarize my sentiment, if the government is forbidding a certain religious belief or practice when it is not infringing on other people and their rights, then the religious individual has the right to cry foul. Otherwise, we speak up and put an end to the chicanery because your freedom of conscience ends where another individual's freedoms begin. Without being aware of the difference between actual religious rights and faux claims masquerading as rights, we can lose our religious rights to either extreme, which is why we should always pay attention to our rights with due diligence and alacrity.

What War on Christmas?

For years, you have heard Bill O'Reilly clamor about it.  The Christian Right in this country fears it.  Even Rick Perry brought it up in his recent gaffe of an advertisement.  Yes, it is that most wonderful time of year: to bring up the War on Christmas.

Recent cases that are supposed to prove that there is a "war on Christmas" are attempts to ban the construction of a Nativity scene on public school property or re-naming the Christmas tree a "holiday tree."

If this war honestly existed, let me tell you what it would look like.  There would be public burnings of Christmas trees.  Those dressed up like Santa Claus would be assaulted.  Churches would be vandalized.  Giving a Christmas mass or praying to Jesus in public would have you detained by the police.  If you want to see what religious persecution actually looks like, take a look at Jewish history.      

If you're still not convinced, take a look at polling.  Rasmussen shows that 70% of Americans prefer the greeting "Merry Christmas" to "Happy Holidays."  Gallup polls are even better.  Not only do 51% of Americans consider Christmas to be 'strongly religious' for them, but more than 90% in this country celebrate Christmas.  Something tells me that Christmas will continue to be a part of American society and culture.

Why is it that those who are delusional about this "war" prioritize better?  What about worrying why Christmas has become a celebration of rampant materialism?  Or better yet, why not worry about real problems such as unemployment, increasing health care costs, or insolvent government spending?  Rather than appease the Religious Right in some fictitious war, maybe O'Reilly and his ilk should be thankful that Christians throughout America can worship their religion freely.

Rebellion for Freedom of Religion and the Chanukah Story

The balance between obeisance and defiance in Judaism is captivating.  The story of Chanukah gives another example to better find that balance.

As the story goes, Antiochus IV Epiphanes expanded into the land of Judea, which resulted in a divide between the Jews.  On the one hand, you had the assimilated Hellenistic Jews, and on the other, you have what would become the zealously religious Maccabeans.  Cultural oppression ensued.  Jewish practices such as Torah study and circumcision were outlawed.  Antiochus even went as far as sacrificing a pig on the altar in the Temple!  Given the political climate, Judaism was at stake.  Rather than be obedient to the authorities, the Maccabees decided to revolt against the Greek establishment.  After much fighting, the Greeks were overthrown and sovereignty was returned to the Israelites. 

I find it ironic that a celebration of the victory of the Religious Right is the most favorite holiday of secular Jews that mostly lean to the Left, but I'll leave that one alone....at least for now.  The point I want to bring up is that the individual was meant to practice their religion, and practice it freely.  The ability to pursue under one's own conscience while not harming others is essential to freedom and finding meaning in life.    

Under normal circumstances, Jewish law dictates דינא דמלכותא דינא, or that "the law of the land is the law." However, Judaism takes exception to that when Jewish practice is at stake, much like with the Maccabees.  Just to elucidate a bit further, something being legal does not make it morally right.  Events such as the Holocaust and the Civil Rights movement remind us that there is certainly a distinction between the two.  

I'm not all too worried about this happening in America.  Historically speaking, freedom of religion in America has been pretty solid.  Thank you, First Amendment of the Constitution!  From a Jewish perspective, we have never enjoyed such freedom in the Diaspora.  The ultimate failure of San Francisco's recent attempt to ban circumcision exemplifies how much we don't have to worry about an attack on religious freedom (e.g., practicing Judaism) in America, especially to a point where we would need to rebel against our government.  

That is certainly a blessing I take into consideration this Chanukah: to live in a country in which I can freely observe my Judaism.  Even though we are not in any danger of losing such freedom anytime soon, Jews should nevertheless be ever vigilant to make sure that what the Maccabees endured is not a reality in our time, but merely a distant memory.  

חג שמח!         

Is There a Libertarian Argument Against Gay Marriage?

"Libertarians are fiscally conservative and socially liberal."  That misnomer highly annoys me, mainly because it's an inaccurate oversimplification.  However, I figured that at least for gay rights, libertarians would be supportive of gay marriage, even if some of them had a personal aversion towards two people of the same sex being together.  After I had recently read this blog entry on the Libertarian Republican, which is based on an article from self-identifying libertarian Pastor Peter Briggs, it looks like I was wrong.  Apparently, there are libertarians who argue that libertarianism is against the idea of gay marriage.  However, this begs an important question: can Briggs' arguments withstand scrutiny?  Let's find out!

• "Marriage is not a privacy issue. Civil marriage is a public institution."
• Marriage is not inherently a public institution.  Throughout a majority of Western history, marriage was a private matter.  The truly libertarian thing to do here would be to take the government out of the marriage business altogether.  As I have stated before, marriage in its most base form is a contract between consenting individuals stating that they want to have a social, emotional, and economic relationship together.  Since we have to deal with the reality that government is going to be in marriage business for a while, we might as well offer the same rights to homosexuals as we do heterosexuals.  Not doing so would be a violation of the Fourteenth Amendment, not to mention the libertarian axiom of contract rights. 
• "In attempting to legalize same-sex marriage, they are now inviting the government into their bedrooms."
• If that's the case, then libertarians should advocate getting rid of all civil marriage.  That way, government can stay out of everybody's bedrooms since civil marriage is inherently intrusive.  However, you're not hearing such advocacy from anti-gay marriage libertarians.         
• "Homosexual marriage is not an issue of individual rights."
• Last time I checked, contract rights and "life, liberty, and pursuit of happiness" were essential to individual rights.  Moral pluralism is also very much a part of libertarianism.  So how is this not an issue of individual rights?    
• "Every American has a right to marry, but also faces restrictions upon whom they may marry. No one is permitted to marry a child, a close blood relative, a person who is already married, or, in most states, a person of the same sex. These are not restrictions upon the right to marry; they are part of the definition of marriage."
• It should be self-evident that we have to face restrictions brought on by the law.  Without it, we'd be in anarchy, and as a libertarian, I don't advocate that.  However, it doesn't apply here.  No one is permitted to marry a child is because a child is not at an age of consent, and thus unable to enter a legally binding contract.  I'm not going to get into the whole incest bit, but I would like to comment that although many Western nations prohibit incest, I was intrigued to find that incest is not prohibited across the board in the Western world.  As for marrying a married person, it should be evident that it would be a violation of a previously signed contract, unless all parties in the contract agreed to the change (e.g., a signed divorce decree vindicating the parties of responsibilities laid out in the previous marriage contract).  And I'm just curious, whose definition of marriage?  The Christian definition?  The one from the Bible?  That can easily be construed as a violation of the Establishment Clause of the First Amendment.  As for the definition of marriage, this point is something I have stated before, but I feel it merits re-iterating: In the history of marriage in Western civilization, a man has been able to marry a twelve-year old girl, he was unable to marry outside his religion, socio-economic class, or race, or even better, there was a time in which marriages used to be arranged.  The definition of marriage in Western culture has been anything but consistent.     
• "Freedom of conscience and religious liberty would be threatened. In the wake of same-sex marriage, we have already seen religious nonprofits being told to compromise their principles or go out of business."
• Because of the nature of non-profits, there are two primary entities that would threaten such organizations: donors or the government.  If you have repulsed enough donors with anti-homosexuality sentiment, that would be the non-profit's fault because they don't know how to conduct business and do fundraising well enough to stay afloat.  Such is the way of non-profits. Now, if the non-profit's primary source of funding is the government, we shouldn't be angry with the government for yanking funding.  Since we are dealing with a violation of the Establishment Clause of the First Amendment, we should be asking why a religious non-profit is receiving government funds in the first place.  If you want to make a private donation to a certain non-profit because it does great work, that is your choice.  However, we shouldn't be using taxpayer dollars to fund these organizations to compel taxpayers to donate to religious non-profit organization with which we don't agree.     
• "Same-sex marriage would compel every employer, including the government, to give same-sex couples benefits identical to those of heterosexual couples."
• Let's forget that most Fortune 500 companies already offer couples benefits to same-sex couples without same-sex marriage being legal in all fifty states.  Private employers should have the right to hire and discriminate as they please.  They should, however, keep in mind that Americans are increasingly supportive of gay rights and gay marriage, something that is illustrated by these recent Pew Center and Gallup polls.  Age is a social trend in favor of gay rights because the younger are much more favorable than older citizens.  Knowing someone who is gay is another social trend in favor of gay rights.  With increased societal acceptance, more gay people will come out, which means a higher probability of acceptance.  My point is that as time goes on, people with anti-homosexual views will be increasingly viewed as bigoted, which is a similar trend we saw during and after the Civil Rights movement.  In short, anti-homosexual views are bad for business.  As for the government's role, they ideally shouldn't be providing such benefits because it's more money from taxpayer's pockets.  However, while government is handing out these benefits, we might as well provide equality under the law.   
• "The rights of children would be undermined. Children have a natural right to be raised by the mother and father whose union produced them."
• The day in which there is no need for orphanages or foster homes, we can take this argument seriously.  Until that time, this argument has no merit.  If it did, we should also make adoption illegal since the child would not be with their natural parents.  There are many children without loving, caring homes.  Homosexual parents should help provide such homes.  Not only has there been no conclusive study proving that homosexual parents are more unqualified than heterosexual parents, but organizations such as the American Academy of Pediatrics (AAP) and the American Psychiatric Association (APA), amongst other medical organizations, confirm that homosexual parents are just as capable as raising children as heterosexual couples.  

The only legitimate libertarian concern presented in the article is that government is involved in the business of marriage in the first place.  If government is to have any role, it would to be to make sure that the contract rights of marriages, whether straight or gay, are enforced by all parties involved.  Short of that, there is no legitimate libertarian objection to two people of the same sex entering in a marriage contract. 

Furthermore, many libertarians support gay marriage, including Jeff Miron, Bob Barr, Ron Paul, David Boaz, the United States Libertarian Party, the list goes on and on. 

There is plenty of room for political discourse in this country.  I personally can't stand marijuana. But as a libertarian, I have to concede that as long as people aren't harming others while smoking it, then they should be permitted to use it because it wouldn't violate the libertarian axiom of non-aggression.  The same argument can be said for gay marriage.  You can like gay marriage.  You can dislike gay marriage.  And if you don't like gay marriage, don't get married to someone of the same sex!  But if you're a libertarian that's going to argue against gay marriage, keep that opposition on the personal level.  Otherwise, you are against the contract rights, individual liberty, and pursuit of happiness that you profess to believe in.  Wouldn't that make just you a conservative in the garb of a libertarian?

The Existential Angst of Twenty-Somethings

Conversations I have had with friends and family who are millenials lately have been interesting, to say the least.  One of the commonalities I have heard has been along the lines of "Religion is not for me" or "Who needs religion?" This, of course, is no surprise since most millenials define themselves as "spiritual but not religious," a phenomenon I explored approximately one year ago.  The other commonality that I have noticed amongst these conversations is that the same millenials who don't see any relevance in religion are also the same ones who tell me that they're lost in life and don't feel any sense of purpose in life.  After hearing that so many people in my generation don't take to religion, for whatever given reason, it begged the following question:

"Are my friends feeling more lost because they don't have religion or is my attempt to point out causation a form of cum hoc ergo propter hoc?"

I've actually had this discussion with a former professor.  In today's society, there is something inherently unstable about being in one's twenties.  As she had stated, "the twenties were the worst time in my life."  There are so many uncertainties with being in one's twenties.  With the decline in marriage in this country, being single and not finding that "special someone" is becoming all the more prevalent.  Even with the imperfections in marriage exemplified by the rate of divorce in this country, there is still something to be said for the companionship of another individual and combatting a sense of loneliness and despair. 

Higher education also puts a strain on millenials.  For the Baby Boomers, a high school education was sufficient.  During those days, only one person with a high school education had the realistic potential to support a middle-class family.  Nowadays, you need two parents with post-secondary education to maintain the same lifestyle.  In addition to the fact that a Bachelor's Degree does not have as much effectiveness as it used to have, you also have to deal with the hyperinflation of college tuition costs compared to general inflation, which is estimated to be 300 to 400% higher than normal inflation (numbers calculated from late 1970s).  The feeling of debt can crush an individual's mentality and reduce the individual to abject despondency.  Since the labor market of those with Bachelor's Degrees has increased, not to mention the expectation of post-secondary education, the overall value of such an education exacerbates the individual's situation since it takes more time to pay off that debt.  And we can all be certain that a global recession only compounds all of this hopelessness. 

Millenials also have to deal with being unsure of their career path, entry-level wages, increased costs of buying a house (when adjusted for inflation), and a hostile, uncivil political climate that breeds uncertainty and cynicism.  Needless to say, there is plenty that has the potential to bog down the typical millenial. 

I don't want to diminish these valid concerns.  They breed incertitude in an indvidual, and that incertitude creates angst.  However, if millenials are to believe that life is so awful, I think each millenial would need to pick up a history book because living conditions and security of rights in this country right now are better, obviously with some exceptions in certain areas, than in any other country during any given period in time.  Life expectancy is longer than ever and what used to be considered luxuries (e.g., air conditioning, the automobile, the five-day work week) are now commonplace. 

Dealing with difficult times and incertitude is nothing new in our day.  I don't care what you say about organized religion.  Every institution has its flaws and need to be worked out.  However, dismissing centuries of religious wisdom and practice is foolish.  There is a reason why religions have had staying power for all this time.  They have grappled with life's questions of meaning and significance.  They have had much more time to hammer out the details than a millenial has had to even think about them.  Throwing out the baby with the bath water is imbecility par excellence.  Although there are exceptions, the general trend I see in life is that those who have religion in their life have more stability in their life.  More stability generates more happiness because one does not feel lost.  Is this to say that religion is for everbody?  Not necessarily.  Is this to say that religion automatically makes you a good person?  No.  I have met religious people who are severely flawed, and I have met atheists who are wonderful human beings.  Is to even say that religion will solve all your problems?  Nope!  I don't make that guarantee.  Life is a bumpy ride, after all.  The purpose of religion and having a sense of connection with a higher power transcending yourself is that when these bad times do come along, you are better anchored and better equipped to handle it. 

This is not an attempt for me to prosletyze.  After all, in Judaism, an individual from any nation has the potential to be rewarded in the afterlife, presuming there is one in the first place.  Jews don't need to convert others.  What I advise to my friends who feel lost and who feel they are severely missing that sense of purpose in life, go religion shopping!  I know, it's a secular way of framing the advice, but see which religion works for you.  Obviously, I would say give Judaism a try.  Aside from it working for me quite nicely, I find it has a pragmatic, realistic way to approach theology, ethics, and the question of the meaning of life as a whole.  But a man's spiritual journey is his own, and what I hope is that what he finds ultimately brings him solace.         

Where I Part From The Right

I'm a Right-leaning libertarian.  I would assume that labeling myself as such would adequately differentiate me from a conservative.  After having a recent conservation with someone close to me who called me a "Rightie," I had to think about this topic.  Normally, it wouldn't have bothered me.  However, I chose to self-identify as a libertarian two years ago precisely because I didn't want to be seen as a conservative. 

Before continuing, I know I am going to have some detail with defining the Right because there are many types of conservatism.  Portraying conservatives as a monolith is not something I like to do just because I am aware of the variations of conservatism, but nevertheless will have to do so in order to illustrate why I am in the camp of libertarianism, as opposed to conservatism.

I certainly see how many people don't see the difference between a Right-leaning libertarian and a conservative.  The biggest similarity is advocacy of the free-market.  This will cover a wide range of issues upon which I will agree with conservatives, from the growing entitlements to taxation to wasteful government spending to health care.  Economic issues is what brought the libertarians and conservatives together during the Reagan era, and considering this recession, could reunite the two if the Republican Party truly puts its focus on the fiscal issues.  I also grew up with certain values, such as frugality and prudence, personal responsibility, respect for tradition, and a strong work ethic, that many in modern-day America would consider antiquated.  There are also issues like gun rights and affirmative action that I truly believe that the government should have very little to no business in.  I even believe that the amount of evidence for climate change is insufficient to merit the amount of government intervention that the Left is attempting to use.

You would think that based on the previous paragraph, I would be a bona fide conservative.  Alas, that is not the case.  Here is list of political topics in which I would disagree with your "typical conservative" as of date:

• Religious freedom: There is no "separation of church and state" clause.  The clause in the Constitution is to not establish religion.  In spite of that distinction, I surprisingly agree with the secular Left, albeit for different reasons, on these issues.  I find that trying to bring prayer back in public schools would be a violation of the First Amendment.  Based on a technicality, displaying the Ten Commandments would be unconstitutional.  I would not have a problem with children learning Intelligent Design in school.  I find that a "higher power" that created the universe is a plausible explanation.  However, my issue is that many in schools in this country would attribute the title "Intelligent Designer" to Jesus, which would be a violation of the First Amendment.  
• Marriage: Marriage is nothing more than a contract.  As long as the individuals are consenting and doing this of their own volition, I do not care what you do behind your bedroom doors, whether you are gay or straight.  Gay marriage would simply be a contract between two consenting individuals of the same sex saying they want to commit their lives to one another.  To deprive consenting individuals from entering such a contract is a deprivation of contract rights, to say the least.  The conservative's aversion towards gay marriage, whether brought on by religion or ignorance, gets in the way of a typical conservative viewing the issue clearly.  With that in mind, I will go as far as saying that with that argument, I would also be pro-polygamy, providing that the individuals within the polygamous marriage are all consenting individuals.  I know that this is a widely unpopular view in America because "marriage is between one man and woman."  It has even been codified in American law under Reynolds v. United States.  Aside from arguing contract rights, I will say that Jacob, King David, and King Solomon all had more than one wife in the Bible.  From a Jewish standpoint, I will say that until very recently, polygamy was acceptable and practiced within the Sephardic world.  
• Marijuana: On a personal level, I am anti-marijuana.  I don't want to smoke the stuff, and I don't plan on doing so anytime soon.  Any individual I have met who has admitted more than one-time usage seems debilitated and stymied to grow as an individual.  In spite of personal opposition, I think that states' rights should fight it out, which is why I was disappointed at Proposition 19 last year.  If some states try it out and it turns out poorly, other states would have the empirical data to prove that marijuana reform might not be the best idea.  
• Defense spending and National Security: I'm with Doug Bandow and other Cato Institute experts.  We're spending too much on defense spending.  Written by Benjamin H. Friedman and Christopher Preble in 2010, Cato Institute put out a superb policy analysis about how we can cut the defense budget and still be just as effective.  I can see how a conservative can see this as unpatriotic or viewing this as not being pro-defense or have a sense of national security.  Nothing could be further from the truth!  I have had immediate family service in the Armed Forces and have great respect for those who serve.  However, much like with any other facet of the budget, I am an stalwart advocate of cutting out unnecessary spending to help avoid fiscal ruin in the long-run.  Since the Department of Defense has the third largest budget (#1 and #2 are Health And Human Services and Social Security respectively), it's not exactly a minute part of our budget.  Since America does a majority of the global military spending, it might not be the worst idea to have other nations share some of the burden while we figure out how to spend more effectively.  Although I believe in preventing further terrorist attacks, I find the Patriot Act to be a blatant violation of the Fourth and Fifth Amendments.  Just because the government hasn't used the Patriot Act to do search and seizure without a warrant on "everyday Americans" or search databases for private information doesn't mean the government can't.  After all, they have the carte blanche to do so with the Patriot Act.  On a side note, what are we doing in Afghanistan?  I'm no peacenik, but there is no valid reason that America should be using its limited resources on a lost cause.
• Life Issues: I'm not 100% in accord with conservatives on life issues.  I know that the one place where we would essentially agree is abortion: I'm anti-abortion, and yes, a libertarian can still be anti-abortion and maintain their libertarianism.  I have become more sympathetic to the pro-euthanasia side, particularly since our medical technology can better gauge an individual's probability of "making it."  Let's just say that I am for passive euthanasia, but still have an issue with active euthanasia.  As for the death penalty, that's more ambiguous.  Nothing says 100% deterrent like capital punishment, especially when we are living in a time with such lax criminal laws.  However, my ambivalence primarily comes in when you give the state that much power, especially if there's a prolonged issue of executing innocent people.
• Immigration: I figured that I would save this one for last.  Although my views on this topic used to line up perfectly with Right-winged mouthpieces, I have come to [appreciate] a more nuanced view on the topic.  I agree with conservatives that we should enforce our immigration laws in the name of national security.  I also find that the root of the problem is not the immigrants themselves, but the animosity is based off the entitlement programs that Big Government provides.  If we attacked welfare programs at its most base core, anti-immigration sentiment would subside, which is something we need considering that about 30% of immigrants have a Bachelor's degree or higher. 

Although these topics merit further detail, it should be safe to say that I have proven that my political views line up with libertarian thought.  I place a strong emphasis on individual freedom and the axiom of non-aggression.  It's a relatively simple political philosophy, but it's also a sound one.

National Day of Prayer

The recent district court case of Freedom from Religion Foundation v. Obama (2010) has caused quite a controversy because U.S. District Judge Barbara Crabb ruled that the National Day of Prayer is unconstitutional.  In spite of the ruling, she has decided to stay her ruling due to the anticipation of appeals, which should be telling because her actions are "saying" that even she thinks it'll be overturned.

Does a National Day of Prayer violate the Establishment Clause?  Based on my blog series these past few days, I hope you know that the answer is a resounding NO!  Whose religion is being established here?  Even though there are a lot of Christians participating in this event, it is a non-coercive event in which people of all faiths partake.  Just to re-iterate that last part, 1) the government is not forcing you to pray, and 2) this is for people of all religious backgrounds, not just Christians.

Leaving constitutionality out of this for a moment, prayer is something more than just a Christian practice. Prayer is a universal expression of man's angst and desire to connect to a higher, transcendent being, whether that would be Hashem, Buddha, Allah, Jesus, or Mother Nature.  Short of your extreme nihlists, this is a yearning that every human has.  I find that the universality of prayer is precisely why there should be a National Day of Prayer.  Every American, regardless of belief, can come together in a pluralistic environment to pray.  The statement that is being made is that in spite of difference in religious background, we are all human and we desire prayer.

I will end this blog post with a quote from Obama's 2009 National Day of Prayer proclamation.  And I don't do so because I think he's a wonderful president (obviously!), but because he's a great orator, and in this instance, he's correct:

"Let us also use this day to come together in a moment of peace and goodwill. Our world grows smaller by the day, and our varied beliefs can bring us together to feed the hungry and comfort the afflicted; to make peace where there is strife; and to lift up those who have fallen on hard times. As we observe this day of prayer, we remember the one law that binds all great religions together: the Golden Rule, and its call to love one another; to understand one another; and to treat with dignity and respect those with whom we share a brief moment on this Earth." 

   

And let us say Amen!

6/28 Addendum: The text of the law itself states the following:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to G-d in prayer and meditation at churches, in groups, and as individuals.

I am not bothered by the bit where it mentions G-d.  The technicality by which I am bothered, which was pointed out by a lawyer I know, is "at churches."  Keeping in mind that this was written in 1952, the only way to be a "good American" was to be a "faithful Christian."  The fact that you go to church to pray, rather than a house of worship, makes the law as written a violation of the Establishment Clause.  However, if they were to modify the law to make it more inclusive, I would find no Constitutional violation.   

Religious Displays on Public Property

I find this topic to be a tricky one.  The Supreme Court's rulings on the matter are no less confusing and contradictory, which is why I won't even go there.  Where one draws the line between establishing an official religion and eroding religious freedom can be difficult.  But I would contend that the purpose was not to eliminate religion from the public sphere to reduce religion to "a private matter."  I would certainly see that as an erosion on my freedom of religion.  It's just that this needs to be dealt tactfully, especially since a whopping 76% favor religious symbols in the public sphere.  What is a great testament to that is what we already have in public buildings:

 
Here we have an engraving of Moses on the Supreme Courthouse in DC.  Establishment of religion?  Hardly!  He's surrounded by Greeks and Romans.  What is merely being recognized is that Mosaic law, as well as common law, both have shaped American jurisprudence.

Here is a picture I took at Jefferson Memorial a couple years back.  It's a quote from Jefferson, and much to my amazement, it mentions G-d!  But read the quote in its entirety.  Although it mentions that freedoms are G-d-given, the state (i.e., man) is meant to ensure those rights, rather than lead to a slippery slope to slavery and despotism. 

Here is a statue of Father Junípero Serra.....in the U.S. Capitol Building!  But there are statues of other people, non-religious people, and that includes former U.S. presidents.  Again, religion is not being established.  Can people recognize that we live in a country that has had significant Christian influence, but at the same time can respect people of other religions?  I don't look at this statue and say, "oh, this statue of Serra violates my First Amendment rights.  Tear it down!"  I think, "Serra played a role in American history, even though he was a big-time Catholic." 

There are people out there who see anything remotely religious and are automatically offended--it's practically a gag reflex for them.  I must have missed that clause in the Constitution that guarantees one's right not to be offended......oh, wait, I forgot; it's non-existent!  On some level, people just need to develop a stomach for religious displays in public.

On the other hand, I can see scenarios in which it could become troublesome.  Let's take the Nativity scene, for example.  If you want to display a Nativity scene, you can do so on your own property.  After all, we still have this notion called "property rights" in America.  I can display my menorah on my window sill, you can put your Nativity scene or inflatable Santa Claus on your front lawn, and that's OK because that is private property.  I will tell you, though, why it should not go on public property: because it's public property.  That might seem tautological, but let's examine the difference between public and private property.  Private property is excludable and rival, whereas public property is not.  On public property, if a Christian has the "right" to erect a Nativity scene, the atheist has the "right" to kick it down.  Especially when funded by tax-payer dollars, but even when not, such displays should not be on public property. 

Barring such displays on public property does not infringe on one's freedom of religion, especially when you can put up such a display at your own home.  And for those of you wondering, this would mean I wouldn't even want to see a menorah on public property.  I don't want the government imposing my religious practices [even if subtly] on others, just like I wouldn't want Christianity imposed upon me. 

Before concluding, I would like to make a distinction between religious displays in public and practicing religion in public.  For one, as previously stated, not putting up a menorah or Nativity scene does not violate the Free Exercise clause.  Two, if a religious group would like to hold a prayer service or ritual in a public venue, that is fine, as long as the government does not discriminate against one's religious practice, whether it'd be Christian, Jewish, Muslim, or Buddhist.  The beauty of America is that we can be open about being religious and are able to express it.  We should keep that consideration in mind while preserving the First Amendment in its totality, which means both the Establishment and the Free Exercise Clauses.   

Public Display of Ten Commandments

The Ten Commandments have played an important role in shaping Judaism, Christianity, and the Western World.  Many an outcry have been made regarding the public display of the Ten Commandments.  In recent memory, the Supreme Court has made two rulings on the matter: McCreary County v. ACLU (2005) and Van Orden v. Perry (2005).  In the former, it was ruled unconstitutional because it promoted religion, whereas in the latter, it was considered constitutional because it was secular in its meaning.  I would like to point out the irony that the Supreme Court ruled on both of these contradictory rulings on the same day: June 27, 2005!  This example of case law epitomizes the confusion that America has on the role of religion in America.

If we set the Supreme Court's bewilderment aside for a moment, there is a way where we can clearly see if there is establishment of religion going on here.  Let's take a look at the Jewish version (i.e., the original and correct version) of the Ten Commandments:

Does this version match up with the Christian version?  The answer is "no," but needs elaboration.  Not only is the answer "no," but the Protestants and Catholics cannot even agree upon what the Ten Commandments are.  The Catholics combine the First and Second Commandments.  They then make Commandment #9 not coveting your neighbor's wife, and Commandment #10 is not coveting your neighbor's goods.  In Judaism, the Tenth Commandment is an all-inclusive commandment against coveting.  In the Protestant version, they do away with the First Commandment all together.  They split up the Jewish version of the Second Commandment, which reads as following: #1: Thou shall not have other gods before me.  #2: Thou shall not make graven images. 

Since America has historically been predominantly Protestant, the version that has been displayed is the Protestant version.  Since preference has been given to one version over the other, the display of the Ten Commandments on public property violates the Establishment Clause, thereby making it unconstitutional.

Ceremonial Deism and the Constitution

Many are wondering what I mean by ceremonial deism. Ceremonial deism is a legal term that means "a ritual that mentions the divine, but the ritual is rendered non-religious through its long, customary usage."  The two most popular examples of ceremonial deism are the words "under G-d" in the Pledge of Allegiance and "In G-d We Trust" on our currency.

Historically speaking, the words "under G-d" were added to the Pledge of Allegiance in 1954 to "stick it to those g-dless Communists."  Adding "In G-d We Trust" to our currency, on the other hand, goes all the way back to 1864 when it was put on the two-cent.  It had been put on other coins in the early twentieth century, and was finally added to paper currency in 1956.  1956 was also the year where Congress had, for the first time in history, declared a national motto ("In G-d We Trust").  Prior to that, E Pluribus Unum (From Many, One) had been the unofficial motto of America.

In the case of Elk Grove Unified School District v. Newdow (2004), Justice Sandra Day O'Connor explains (p. 35) why the Pledge of Allegiance does not violate the Establishment Clause.  O'Connor has always been a proponent of the endorsement test.  Since the Pledge of Allegiance does not endorse one religion over the other, it does not violate the Establishment Clause.  The Pledge of Allegiance is meant to be a non-religious expression of patriotism. 

I would argue that it doesn't violate the Establishment Clause because G-d is a generic term that can apply to Christianity, Judaism, or Islam.  Whether it violates the Free Exercise clause, however, is another story.  Although it's technically voluntary to say the Pledge, children are too impressionable to see the difference and will most likely be peer pressured into saying.  Being a Jew, I would be uncomfortable with the fact that I would have to pledge allegiance to a flag.  Since a practicing Jew, as well as a practicing Muslim, should ultimately "pledge allegiance" to G-d, such a practice, no matter how seemingly voluntary, can be seen as an infringement of the Free Exercise Clause, as well as on the Free Speech Clause.    

The currency controversy is slightly different.  Most people don't look down at their money and think, "Oh, the government is establishing [or endorsing, for that matter] Christianity as this country's religion.  Let's take it off the money," although there are some atheists out there who decide to cross off the motto.  I'm not even going to go into how much it would cost to efface that from currency.  Even though it mentions the divine, is putting "In G-d We Trust" on our money a religious act?  The answer is in the negative.  Furthermore, as previously stated, which monotheistic version of G-d is in reference?  As such, it technically is not a violation of the Establishment Clause.  It also has nothing to do with the Free Exercise Clause because it doesn't inhibit one's religious practice in any way.  In addition, the practices are innocuous enough where it doesn't really sway First Amendment rights either way.  Unless ceremonial deism becomes used for more nefarious means, I don't see any reason to spend additional time on the matter.

Constitutionality of School Vouchers

One can make this about whether school vouchers work or the economic practability of such vouchers.  Obviously, being libertarian, the ideal country would be one in which the government would not have to tax for education, especially considering that it is not a public good.  However, if we live in a world where such taxation exists, I would much rather have it reappropriated to the taxpayers.  That way, it creates competition with the public school system, which now gives the public school system incentive to improve upon itself.  Also, it gives the taxpayer more say as to where his money is used.

My brief on this issue will be brief.  In order to figure out the constitutionality of school vouchers, one has to know what a school voucher is.  In essence, a school voucher is a certificate issued by the government to help offset costs if they so choose to send their child(ren) to a private school.  In short, a school voucher reallocates tax dollars back to the taxpayer in order to bring a more level playing field in the choice between public and private school.  If a parent does decide to send their child to private school, they still have to pay taxes for public school.  This description should make the answer a bit self-evident.  The government is giving the money to the taxpayer and saying, "Apply it to whichever school you like, whether it would be religious or secular."  The act neither establishes nor endores a specific religion.  Therefore, the answer must be that school vouchers do not violate the Establishment Clause.  This is the exact same thought process that the Supreme Court thought when it decided on Zelman v. Simon Harris (2002), the Supreme Court case which stated that school vouchers are constitutional.  Since the aid was not direct, the aid was thereby constitutional, much like it was in Everson v. Board of Education (1947).

Prayer in Public Schools

First, I just want to briefly touch upon the Supreme Court cases, then give my analysis on the issue.  School prayer made its public debut as a legal issue in the Wisconsin Supreme Court case of Weiss v. District Board (1890).  In this case, the plaintiff was a Catholic complaining that the government was endorsing the King James Bible in school.  The ruling stated that using state funds for a sectarian text was improper because it established religion (i.e., Protestantism).  The reason why this state ruling is important is because it is cited in the majority opinion of Engel v. Vitae (1962), the famous Supreme Court case that made compulsory prayer in school illegal.

It doesn't matter what the Christian Right has to say on the matter.  The fact is that compulsory school prayer is a violation of the Establishment Clause of the Constitution, and the Supreme Court was right to rule in such a way.  I'm sure that the "pro-prayer in school" crowd would argue that it would be voluntary, but if it comes on the morning announcements every day and you're at an impressionable age, would you honestly view it as voluntary? 

Now voluntary prayer, on the other hand, is legal, as it should be.  If it were made illegal, then it would be a violation of the Free Exercise Clause, plain and simple.  Plus, from a pragmatic standpoint, there is no need for compulsory prayer in school.  If Jews wanted to, they can wait until after school to pray Mincha.  For a Muslim, he can excuse himself from class since the quotidian prayer session is brief.  And Christians don't have daily, fixed prayer sessions, so they can pray whenever they want to.  If your child really has an urge to pray during the daytime, they can get together with their friends either before school or during lunch hour and pray then.   

If the lack of compulsory prayer in public schools bothers you, put your child into private, parochial school.  If this is not affordable for you, then home-school your child.  If this is not viable, then at that point, it's called being a good parent.  School only has your child for about eight hours a day for five days a week (i.e., 40 hours).  You have your child for the other 128 hours.  If you cannot instill the importance of prayer into your child, then you need to learn how to be a better parent. The last thing you should be doing is forcing your religion via the schools on everybody else's children just because you think the school is a substitute for good-old fashion parenting.  Schools are not a tenable replacement for parents, and the public school is not an institution in which it is supposed to instill religious values.  The government, whether federal or state, has no business establishing religion through compulsory prayer, and certainly has no business in violating the Free Exercise Clause of the Constitution.

The Myth of "Separation of Church and State"

I want to make one thing clear when discussing religion in America--there is no such constitutional clause calling for separation of church and state.  This "separation" was not even a notion that they were even considering when drafting the Constitution, much less when they came out with the final draft.  If you have a beef with religion, that's your prerogative, but please, don't invoke this fictitious legalism into the discussion. 

The origin of the phrase "separation of church and state" comes not from the Constitutional Convention or even the eighteenth century, but from the Danbury Letters written by Thomas Jefferson in 1802.  And just so we put the phrase "separation of church and state" into context, the Danbury Baptists were seeking aid from Jefferson for religious disestablishment in Connecticut because the Baptists hated being bullied around by the Congregationalists (i.e., the state-officiated religious establishment for CT).  In response, Jefferson subsequently disappointed when he said that he would not intervene because he did not want to intervene in states' rights issues.  Even if that bit of history is not to your liking, you run into an even bigger issue: Jefferson had nothing to do with the drafting of the Constitution.  As a matter of fact, during this time period, he was an ambassador in France.  As bright of a man as Jefferson was for his time, he had nothing to do with the Constitution whatsoever, thereby rendering the Danbury Letters, as well as Jefferson's opinion on the matter, as irrelevant for acquiring original intent of the drafters of the Constitution. 

In addition, the phrase "separation of church and state" made its way in 19th-century politics, but it wasn't used by secularists who wanted to do away with religion.  It was actually used by Protestants as an anti-Catholic measure.  They wanted religion to be separate from politics, but they only wanted it to be applicable to the Catholics.  In short, the Protestants, and the Presbyterians in particular, wanted their misinterpretation of the law to be used to keep the Catholics out of politics.  This usage also makes sense from a historical context since 1) militant atheism wasn't prevalent until the latter half of the twentieth century, and 2) anti-Catholic sentiment was rampant in America up until around the 1960s. 

From the standpoint of the Supreme Court, the phrase "separation between church and state" made its first appearance in Reynolds v. United States (1879).  However, the phrase was not used for about another 70 years, when it formally entered the Constitutional lexicon during the case of Everson v. Board of Education (1947).  Justice Hugo Black, who used the phrase in his majority ruling, was anti-Catholic.  All of this context makes the ruling all the more interesting.  In spite of Black being anti-Catholic, in spite of the fact he used the phrase "separation of church and state," he nevertheless voted in favor of the law that allowed parents to use reimbursements of money to bus their children to Catholic schools.  If Justice Black agreed with liberal secularlists on the matter of separation of church and state, his ruling in Everson v. Board of Education was a funny way of showing it.

For even more historical descprition on the matter, please read Justice Rehnquist's dissenting opinion for Wallace v. Jaffree (1985).  Riveting stuff, let me assure you.

Although it seems clear to me what was meant by the Establishment Clause, many still are not getting it.  Rather than leave a legacy of clarity on the issue, all Justice Black did was befuddle it by leaving the Supreme Court, as well as most Americans, in a state of ambiguity.  As we shall see, this has lead to inconsistent Supreme Court rulings, which I will outline later, especially in the case of the Ten Commandments being publicly displayed.  The fact that anti-religious secularists have obscured the issue with the Everson case makes the issue all the more confusing.  However, I hope that these next few days, we can see past much of the confusion. 

What the Constitution Has to Say About Religion in America

In light of my rabbi's upcoming Adult Education course entitled "Separation of Church and State: How Hard Should Jews Push," I have decided to do a blog series entitled "Religion in America."  For the next two weeks, I will have various blog entries surrounding a myriad of topics, including prayer in school, whether Christmas should be a federal holiday, and the display of the Ten Commandments on government property.

Before we begin delving into these topics, however, we need to have a legal basis upon which we support ourselves.  In this country, the legal document with the most authority is the United States Constitution.  As far as I am concerned, the Constitution is the most brilliantly written secular, legal document in history.  It protects the freedoms of the people while giving the government the minimal amount of power so that society can properly function.  Therefore, we must then ask ourselves, "what does the Constitution have to say about religion?"  The most relavent section of discussion is undoubtedly the First Amendment.  The text is as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

From the Constitutionalist standpoint, there are two clauses: the Establishment Clause and the Free Exercise Clause.  The Establishment Clause is just that--to make sure that an official religion was not established.  For time's sake, I will further review the concept of "separation of church and state" in my next entry.  The reason why the Founders of the Constitution did not have such a broad take on the Establishment Clause is because it would be a violation of the Free Exercise Clause. 

Some might believe that the Free Exercise Clause only covers belief systems.  However, both the Founders and various Supreme Court rulings over time have found that "free exercise" applied to religious practice, as well.  However, the Free Exercise Clause is not a carte blanche for "anything goes."  In regards to freedom of speech, you cannot yell "Fire!" in an open movie theater.  And with respects to the Second Amendment, we prohibit felons from possessing fire arms.  As a society as a whole, we find that some freedoms need slight curtailing so that overall freedom [of religion] can be maintained.  Two such cases that come to mind are Reynolds v. United States (1879), which banned the Mormon practice of polygamy, and Employment Division v. Smith (1990), which declared that a generally applicable drug law applied to Native Americans who would typically use peyote for their religious services. 

If one needs more clarity on the balance between Establishment and Free Exercise, one only need to look towards the Northwest Ordinance, which not only was drafted within the same time period of the Constitution, but approved by the very same Congress that approved the Constitution.

I will conclude with a couple more passages that are relevant to "religion in America."  The first is Article Six, Section Three, which states:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

My secular and liberal friends think that the fact that there was no religious test to get into office meant that government should be absolutely separate from religion, but what they fail to realize is that most states at that time had official state religions.  Therefore, the implementation of this article was more pragmatic genius than it was a stab against religion.   

Finally, we have the Fourteenth Amendment, and to be more specific, the Due Process Clause, which states:

....nor shall any State deprive any person of life, liberty, or property, without due process of law....

The Due Process clause is of value.  As previously stated, states used to have official religions.  Now with the Due Process clause, such an occurrence can never happen, and religious freedoms are now also protected on the state level.  It is because of this clause that most of the Supreme Court cases surrounding the theme of religion in America are on the state level.

Now that we have sufficient Constitutional background, I only find it fitting that the next topic of discussion is what the Constitution does not say, mainly the topic of "separation of church and state."