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Is SCOTUS About to Put Religion Over Civil Society?
So here we are in 2023 and the real beliefs and plans of the Founding generation — slaveholders and abolitionists alike — have dissolved into a blur of BS, Qanon, and fundamentalist religion
Yesterday “Paul from Woodinville, WA” called into the show and asked, perhaps rhetorically, what the end goal of the GOP was for America. “What kind of a nation are they trying to create here?” he said.
The answer is straightforward. Today’s radical Republicans are trying to turn America into a Christianized version of something like Pakistan.
That nation’s version of the IRS has been so gutted — a main goal of Republicans here — that about half of all income taxes owed by wealthy people aren’t paid.
Pakistani police enforce religious law and you can be arrested for what a preacher calls blasphemy.
Ninety-four percent of the nation lives in relative poverty with incomes below US$10,000 per year, but the morbidly rich live palatial lifestyles and are largely immune from police or government oversight.
Here in America the GOP has moved us rapidly in the direction of Pakistan, gutting the American middle class and making the rich richer.
By cutting income taxes to the point where the average billionaire pays less than 3%, they’ve engineered a $50 trillion transfer of wealth over the past 42 years from working class folks into the money bins of the top 1 percent.
By gutting union rights both Republicans in Congress, four Republican presidents, and the Supreme Court have cut union membership in America by about two-thirds.
And by foisting the Dobbs decision (and Hobby Lobby and the gay-hating baker) on America, they’ve moved rapidly toward their goal of religious law — a Christian Sharia — being the ruling doctrine in this country.
Last June with Dobbs the Supreme Court empowered cops in America to police women based on religious doctrine, just like in Pakistan. Republican politicians in Red states are falling all over each other in a race to see who can most empower police to arrest and imprison women for having abortions, traveling out of state to get an abortion, or even receiving abortion pills through the mail.
And now the Supreme Court is preparing to finish the job, by forcing government and employers to dance to the tune of preachers.
Rightwing justices on the Court just voted to allow arguments April 18th on a case that could force employers to bow to the demands and wishes of religious fanatics they have the misfortune to have hired.
In Groff v DeJoy, a former postal worker is claiming that as a Christian he can’t be fired for refusing to work Sundays, even though he knew when hired that may be required of him. He claims the Post Office — after extensive efforts to work around his unwillingness to show up on Sundays — engaged in religious discrimination by threatening his employment if he didn’t occasionally work on his sabbath.
Title VII of the Civil Rights Act of 1964 protects employees from religious discrimination, but doesn’t clearly define what that means. How far should companies go? Should they hire extra people, for example, to fill in for employees who take off their sabbath day? Who go to church three times a week? Who are offended by other employees wearing a cross or Star of David jewelry?
The Supreme Court clarified the issue in 1977 with their Trans World Airlines v Hardison decision, which concluded that companies must make reasonable accommodations for employees’ religious concerns so long as the impact of those accommodations on the company and the workers’ peer employees were de minimis, Latin and legalese for “trivial.”
Soon, however, government and employers may have to jump to the tune of religious people in the workplace even when the consequences are difficult or expensive for the employers and/or fellow employees.
The Court may force the state to prioritize religion above normal business and governmental concerns, in other words.
Once this decision is rendered, if it goes the way observers expect, there will certainly be challenges to it coming from groups like the Satanic Temple, which convinced an Oklahoma court to require that state to take down a Ten Commandments monument, has already been ruled is a “real” religion, and has 24 official chapters around the US.
Or the Church of the Flying Spaghetti Monster, whose members, a Massachusetts court has ruled, are legally entitled to sport their unique headwear (a colander) in official government ID photos.
Or Rastafarians, who may argue that marijuana is their sacramental herb and they should be allowed to work under its influence.
After all, the IRS has acknowledged all of these groups as legitimate religions by granting them tax-exempt status. While that may deprive the government and some communities of income and property taxes, it generally doesn’t hurt anybody.
The IRS notwithstanding, challenges like these will almost certainly be struck down by courts as being unserious.
But that’s a bad thing, because it means that our judicial system will have been hijacked by “serious, mainstream” religions to do their bidding. The only religious accommodations government and employers will be required to offer will be for members of the world’s “major” religions and their denominational offshoots.
And at that point, church and state in America — particularly fundamentalist Christian religion — will fully and legally have merged for the first time in our history. We will be closer to Pakistan than the nation we all recognize today.
This is not the way the Founders of this country and the Framers of the Constitution envisioned things working out, as I document at length in my newest (July 2023) book in the Hidden History series, The Hidden History of American Democracy.
The Founders and Framers believed that secular democracy is a more powerful unifying force for a decent and peaceful civil society than any religion ever was or could be. Although most were spiritual in their own ways, and many were also openly religious, as students of history the Founders and Framers knew the damage that organized religion could do when it gained access to the reins of political power.
And, with the memory of the Salem Witch Trials and other religious atrocities still fresh in their minds, the Founders knew that those among the organized religions who sought to combine political power with their existing religious power would be unrelenting and could be deadly to democracy.
While our Founders were well schooled in the history of the Crusades they also knew from first-hand experience how oppressive religious men could be with even small amounts of political power.
The Puritans, for example, passed a law in Plymouth Colony in 1658 that said:
“No Quaker Rantor or any other such corrupt person shall be a free man in [the state of Massachusetts].”
Puritans banned Quakers from Massachusetts under pain of death, and, as Norman Cousins notes in his book about the faith of the Founders, In God We Trust:
“And when Quakers persisted in returning [to Massachusetts] in defiance of law and in practicing their religious faith, the Puritans made good the threat of death; Quaker women were burned at the stake.”
Quakers were also officially banned from Virginia prior to the introduction of the First Amendment to our Constitution. Throughout most of the 1700s in Virginia, a citizen could be imprisoned for life for saying that there was no god, or that the Bible wasn’t inerrant.
“Little wonder,” notes Cousins, “that Virginians like Washington, Jefferson, and Madison believed the situation to be intolerable.”
Ben Franklin fled Boston when he was a teenager to escape the oppressive environment created by politically powerful preachers, and for the rest of his life was openly hostile to the idea of secular political power being wielded by those who also hold religious power.
Although he was enthralled by the “mystery” of the spiritual experience, Franklin had little use for the organized religions of the day. In his autobiographical “Toward The Mystery,” he wrote:
“I have found Christian dogma unintelligible. Early in life I absented myself from Christian assemblies.”
Franklin — like most of the more well-known Founders — was a Deist, a philosophy made popular by early Unitarians who held that the Creator made the universe long ago and has since chosen not to interfere in any way, and that neither Jesus nor anybody else was divine.
Another founding Deist who resisted giving political power to those with religious power was George Washington.
On the topic of Washington’s religious sentiments, Thomas Jefferson wrote in his personal diary entry for February 1, 1799:
“When the clergy addressed General Washington on his departure from the Government, it was observed in their consultation, that he had never, on any occasion, said a word to the public which showed a belief in the Christian religion, and they thought they should so pen their address, as to force him at length to declare publicly whether he was a Christian or not. They did so.
“However,” Jefferson noted to his diary, “the old fox was too cunning for them. He answered every article of their address particularly except that, which he passed over without notice.”
Jefferson concluded that Washington:
“…never did say a word on the subject in any of his public papers, except in his valedictory letter to the Governors of the States, when he resigned his commission in the army, wherein he speaks of ‘the benign influence of the Christian religion.’ I know that Gouverneur Morris, who pretended to be in his secrets [in Washington’s confidence] and believed himself to be so, has often told me that General Washington believed no more of that [Christian] system than he himself did.”
In fact, President George Washington supervised the language of a treaty with African Muslims that explicitly stated that the United States was a secular nation.
The Treaty With Tripoli, worked out under Washington’s guidance and then signed into law by John Adams in 1797, reads:
“As the government of the United States of America is not in any sense founded on the Christian Religion,--as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,--and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”
But for the Founders this wasn’t just an issue of being Christians or not. They vigorously opposed all religious leaders gaining any access whatsoever to the levers of political power or intermingling in any way with state business.
This was particularly true of the “Father of the Constitution” James Madison, who was himself (unlike Franklin and Jefferson) a Christian.
For example, on February 21, 1811, President Madison vetoed a bill passed by Congress that authorized government payments to a church in Washington, DC to help the poor. Faith-based initiatives were a clear violation, Madison believed, of the doctrine of separation of church and state, and could lead to a dangerous transfer of political power to religious leaders.
In Madison’s mind, caring for the poor was a public and civic duty — a function of government — and must not be allowed to become a hole through which churches could reach and seize political power or the taxpayer’s purse.
Funding a church to provide for the poor would establish a “legal agency” — a legal precedent — that would break down the wall of separation the founders had put between church and state to protect Americans from religious zealots gaining political power.
Thus, Madison said in his veto message to Congress, he was striking down the proposed law:
“Because the bill vests and said incorporated church an also authority to provide for the support of the poor, and the education of poor children of the same;...” which, Madison said, “would be a precedent for giving to religious societies, as such, a legal agency in carrying into effect a public and civil duty.”
James Madison flatly rejected government supporting religion in any way whatsoever, noting in a July 10, 1822 letter to Edward Livingston:
“We are teaching the world the great truth, that Governments do better without kings and nobles than with them. The merit will be doubled by the other lesson: the Religion flourishes in greater purity without, than with the aid of Government.”
He added in that same letter:
“I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together.”
Madison also opposed — although he didn’t stop — the appointment of chaplains for Congress.
“Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?” he asked in 1820.
“In the strictness the answer on both points must be in the negative. ...The establishment of the chaplainship to Congress is a palpable violation of equal rights, as well as of Constitutional principles.”
Madison went on to suggest that if members of Congress wanted a chaplain, they should pay for it themselves:
“If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents should discharge their religious duties, let them like their Constituents, do so at their own expense.
“How small a contribution from each member of Congress would suffice for the purpose! How just would it be in its principle! How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience!
“Why should the expense of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Executive or Judiciary branch of the Government.”
As he wrote to Edward Everett on March 18, 1823:
“The settled opinion here is, that religion is essentially distinct from civil Government, and exempt from its cognizance; that a connection between them is injurious to both...”
Thomas Jefferson was perhaps the most outspoken of the Founders who saw religious leaders seizing political power as a naked threat to American democracy. One of his most well known quotes is carved into the stone of the Jefferson Memorial in Washington, DC:
“I have sworn upon the altar of God eternal hostility against every form of tyranny imposed upon the mind of man.”
Modern religious leaders who aspire to political power often cite his reference to “upon the alter of God” as proof that Jefferson was a Bible-thumping Christian.
What’s missing from the Jefferson memorial (and almost all who cite the quote), however, is the context of that statement: the letter and circumstance from which it came.
When Jefferson was Vice President, just two months before the election of 1800 in which he would become President, he wrote to his dear friend, the physician Benjamin Rush, who started out as an orthodox Christian and ended up, later in his life, a Deist and Unitarian.
Here, in a most surprising context, we find the true basis of one of Jefferson’s most famous quotes:
“DEAR SIR, - ... I promised you a letter on Christianity, which I have not forgotten,” Jefferson wrote, noting that he knew to discuss the topic would add fuel to the fires of electoral politics swirling all around him. “I do not know that it would reconcile the genus irritabile vatum [the angry priests] who are all in arms against me. Their hostility is on too interesting ground to be softened.
“The delusion ...on the clause of the Constitution, which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States; and as every sect believes its own form the true one, every one perhaps hoped for his own, but especially the Episcopalians and Congregationalists.
“The returning good sense of our country threatens abortion to their hopes, and they [the preachers] believe that any portion of power confided to me [such as being elected President], will be exerted in opposition to their schemes. And they believe rightly: for I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man. But this is all they have to fear from me: and enough too in their opinion.” [emphasis added]
Thus began a long and thoughtful correspondence — mostly about religion — between Jefferson and Dr. Rush.
In later years, inspired by his discussions with Rush, Jefferson put together what is now called The Jefferson Bible, in which he deleted all the miracles from the New Testament and presented Jesus to readers as an inspired philosopher. His Jefferson Bible is still in print, and well received, if amazon.com sales and readers’ comments are any indication.
In his autobiography, Jefferson wrote an interesting historical footnote about the religious leaders seeking political power he confronted head-on when he authored the Statute of Virginia for Religious Freedom, and who the other Framers confronted when they submitted the First Amendment, which specifies, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”
Speaking of the Virginia law he authored, which was the inspiration for the First Amendment, he noted:
“Where the preamble [to the Virginia Statue for Religious Freedom] declares that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word ‘Jesus Christ,’ so that it should read, ‘a departure from the plan of Jesus Christ, the holy author of our religion.’
“The insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.”
But it wasn’t just religious tolerance that was the issue for Jefferson — it was preventing any one religion from claiming it was uniquely the American religion, and then using that claim to grasp at political power. Thus, secular government must allow even pagans and pantheists to coexist, while at the same time rigorously preventing any of them from gaining power over it.
In his “Notes On Virginia,” Jefferson laid it out clearly:
“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.”
Yet in the days of the Founders, like today, there were many religious leaders who aspired to political power. They claimed that their right to influence government was legitimate because, they said, government itself was founded on their territory: the Ten Commandments.
Because our system of laws was founded on the Ten Commandments, the religious leaders said, they and their Commandments should play a large and powerful role in government and be able to both take from the public purse and influence the courts and laws.
This assertion — that British common law and American law derived from the Ten Commandments — was particularly infuriating to the Founders.
First, there’s the simple fact that there isn’t that much overlap. The Bible and our laws differ in radical aspects.
Our laws don’t specify, as do the Ten Commandments:
— a single god who must be worshipped
— a ban on graven images (statues and pictures)
— require us to take a day off work every week
— mandate that we “honor” our parents
— make it illegal for men to “covet” other men’s wives or sleep with unmarried women
—or make it illegal to tell a lie except under oath (in fact, corporations have recently asserted the explicit “right to lie” under the First Amendment)
The only two things in common between the Commandments and most state or federal laws are prohibitions on killing and stealing, which most people figure have always been pretty obvious.
Of greater concern to the Founders, though, was the naked power grab religious leaders were trying to pull off by claiming that America’s system of jurisprudence was founded in their religious system, and that therefore they should be able to insert themselves into the secular halls of political power.
The claim was made so often and so loudly (and believed by the more gullible of the masses), that several of the Founders thought it necessary to refute it in detail. Jefferson was probably the most methodical.
In a February 10, 1814 letter to Dr. Thomas Cooper, Jefferson addressed the question directly:
“Finally, in answer to Fortescue Aland’s question why the Ten Commandments should not now be a part of the common law of England we may say they are not because they never were...”
Anybody who asserted that the Ten Commandments were the basis of American or British law was, Jefferson said, mistakenly believing a document that was “a manifest forgery.”
The reason was simple: British common law, on which much American law was based, existed before Christianity had arrived in England.
“[British conservative historian] Sir Matthew Hale lays it down in these words,” wrote Jefferson to Cooper, “‘Christianity is parcel of the laws of England.’“
But, Jefferson rebuts, it couldn’t be. Just looking at the timeline of English history demonstrated it was impossible:
“But Christianity was not introduced till the seventh century; the conversion of the first Christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it....
“We might as well say that the Newtonian system of philosophy is a part of the common law, as that the Christian religion is,” wrote Jefferson. “...In truth, the alliance between Church and State in England has ever made their judges accomplices in the frauds of the clergy; and even bolder than they are.”
In a January 24, 1814 letter to John Adams, Jefferson went through a detailed lawyer’s brief to show that the entire idea that the laws of both England and the United States came from Judaism, Christianity, or the Ten Commandments rests on a single man’s mistranslation in 1658, often repeated, and totally false.
“It is not only the sacred volumes they [the churches] have thus interpolated, gutted, and falsified, but the works of others relating to them, and even the laws of the land,” he wrote.
“Our judges, too, have lent a ready hand to further these frauds, and have been willing to lay the yoke of their own opinions on the necks of others; to extend the coercions of municipal law to the dogmas of their religion, by declaring that these make a part of the law of the land.”
It was a long-running topic of agreement between Jefferson and John Adams, our second president, who, on September 24, 1821, wrote to Jefferson noting their mutual hope that America would embrace a purely secular, rational view of what human society could become:
“Hope springs eternal. Eight millions of Jews hope for a Messiah more powerful and glorious than Moses, David, or Solomon; who is to make them as powerful as he pleases.
“Some hundreds of millions of Mussulmans expect another prophet more powerful than Mahomet, who is to spread Islamism over the whole earth. Hundreds of millions of Christians expect and hope for a millennium in which Jesus is to reign for a thousand years over the whole world before it is burnt up. The Hindoos expect another and final incarnation of Vishnu, who is to do great and wonderful things, I know not what.”
But, Adams noted, the hope for a positive future for America was — in his mind and Jefferson’s — grounded in rationality and government, not in religion:
“You and I hope for splendid improvements in human society, and vast amelioration in the condition of mankind,” he wrote. “Our faith may be supposed by more rational arguments than any of the former.”
And yet the true faith of our Founders — the faith in a secular political system uncontaminated by grasping religious leaders — is under attack once again, this time by six religiously fanatic Republicans on the Supreme Court.
In a modern revival of religious leaders seeking political power, emails and tweets fly around the internet saying that Founders like Madison claimed the United States was founded on either Christianity or the Ten Commandments.
Many originate in the writings of a right-wing group whose president helped prepare the History and Social Studies standards for Texas schoolchildren and are so badly taken out of context that they can only be called deliberate attempts to fool people. Others are simple fabrications, quotes created from nothing.
The United States and our laws were not founded on the Bible, or even on biblical principles. Moral precepts against killing or stealing are found not only in the Bible, but exist among every tribe on earth, some of whose cultures and languages date back over 60,000 years.
They’re part of the social code of animals ranging from prairie dogs to gorillas. They’re rooted in the biological imperative of survival.
As Jefferson wrote in a June 5, 1824 letter to Major John Cartwright:
“Our Revolution commenced on more favorable ground [than the foundation of English or Biblical law]. It presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts.”
Jefferson then thanks and congratulates Cartwright for writing that the American Constitution as well as both American and British common law are entirely secular in their origin:
“I was glad to find in your book a formal contradiction, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions, that Christianity is a part of the common law.
“The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed. But it may amuse you, to show when, and by what means, they stole this law in upon us.”
So here we are in 2023 and the real beliefs and plans of the Founding generation — slaveholders and abolitionists alike — have dissolved into a blur of BS, Qanon, and fundamentalist religion, all blended into this year’s Supreme Court decisions by corrupt Republican justices like Alito, Thomas, Barrett, Kavanaugh, and Gorsuch.
Jefferson concluded his letter by denouncing the efforts of churchmen to seize the fledgling United States of America, and paraphrased a 1732 play by Henry Fielding, “The Lottery,” in which a character says “Sing Tantararara, Fools all, Fools all,” lamenting that in the lottery of life, the fools win out all too often.
“What a conspiracy this,” Jefferson closed his 1824 letter to Cartwright, “between Church and State! Sing Tantarara, rogues all, rogues all, Sing Tantarara, rogues all!”
Sam Alito will, no doubt, be searching ancient texts for fundamentalist 17th century English judges who’d uphold the merger of church and state like he did with his egregious Dobbs decision.
Although the founders and lawmakers of Pakistan would support him, he won’t find a single word of encouragement for his crusade from the people who actually created this nation.