Newt Gingrich’s flamboyant suggestions that the Executive Branch should merely ignore Supreme Court rulings at will and legally threaten judges who dare to uphold Constitutional freedom⁷ might be the hottest news in recent weeks.  The under-reported truth, however, is that ideas like his are far from unique within the far right today.

Like shady insurance companies looking for every diabolical way to deny claims on what appear to be good indemnity policies, power-hungry politicians and special interest groups have been hatching ingenious schemes to evade or strip away the Constitution’s protection of individual rights almost since the day it was ratified.

Let’s take an extended look at this multi-partite war against the Constitution.

One early tactic that some within today’s far right have resuscitated is the claim that state governments don’t have to honor the Bill of Rights¹.  Another tactic, championed by presidential candidate Michele Bachmann, is to take away the court’s jurisdiction² over their pet agenda issues.  The Conservative Caucus would combine both tactics⁴.

A far more dangerous tactic that is rising in popularity is to claim that the federal and Supreme Courts should not have the power to overturn unconstitutional laws at all³.  For politicians who claim to care so much about the Constitution, many of them are intent on rendering it mostly or completely toothless and powerless.

The ultimate objective, for most, is the imposition of some degree of theocracy or religion-run government similar to Iran – something that the Constitution expressly forbids.

But there’s another tactic, one which shoplifts the belief in natural law held by many of our nation’s founders, and deviously transforms the concept of natural, inherent, unenumerated rights into an implied or inherent recognition of theocracy.

The founders who played the most influential roles in designing the Constitution did believe in natural, unalienable rights.  Admittedly, those rights were honored very imperfectly at that time, such as those of slaves and women, but lofty abstract ideals that are put to paper ahead of their time have a way of not being well put into practice.  Concerned nonetheless that the government might someday interpret an itemized Bill of Rights to be a license to step on rights that weren’t explicitly listed, however, they included the Ninth Amendment – the founders’ way of reminding us that, where rights are concerned, what you see are not all the rights we get.  Natural rights are covered, too.

To get to the point, I must undertake a thumbnail review of Constitutional concepts and a small but vitally necessary side trip.

The Constitution depends upon implied and inherent powers.  Inherent powers are powers that the federal government must have in order to carry out the functions delegated to it by the Constitution.  Their existence are unstated but are assumed to be obvious – why would the founders delegate a function to the federal government without granting it the powers to perform that function?

The right to privacy, so violently reviled by many on the far right, is an example of an obvious, natural right that happens to be an inherent Constitutional right. Think for a moment – if no right to privacy existed, why would the Fourth Amendment be necessary?  Why all the concern about search warrants and probable cause?

If the founders didn’t believe in a natural and inherent right to privacy, we would have needed no Fourth Amendment to clearly spell out the narrow and specific situations in which government could breach our personal spaces.  The government could just say “hey, we can come in your home any time that we want, for any reason, because you have no right to privacy.”  Without a right to privacy, the Fourth Amendment makes no sense.

So, how do we get from what looks like a broad interpretation of Ninth Amendment rights to a theocracy?

The trick is hidden in the concept of “natural law.”

Natural law sounds like a secular concept, something that can be discovered by observation and tested by experience and effects.  Natural law, as the term implies, is inherent in nature, and therefore would seem to be amenable to scientific investigation and rational inquiry.

But to some, especially in the Religious Right, “natural law” is more of a theological term than a scientific term.  The Christian God, it is asserted, created nature and all within it, and He created the laws that govern nature.  It follows that any implementation of “natural law” is in fact an implementation of “God’s Law” – as defined by their theological doctrines.

At the Thanksgiving Family Forum, a recent Republican presidential candidate forum held at a Des Moines, Iowa church, this concept appeared in the assertions made by most of the candidates: “we are endowed by our Creator with certain unalienable rights.”⁵

They went on to tie the identity of this Creator to the “Judeo-Christian” faith, with candidate Rick Santorum asserting that “the law is a teacher” and “the laws of this country should comport with that moral vision.”  He furthermore implied that imposing religious law was a proper role for the federal government.  Michele Bachmann said that “government is on [God’s] shoulders,” adding that “He created every aspect of life, and He has something to say about every aspect of life.”

Candidate Ron Paul was the only candidate present who explicitly warned that it wasn’t the job of government to impose religious values or engineer the culture.   (Unfortunately, Ron Paul later endorsed one of the other dangerous subversions of the Constitution as a remedy for Roe v. Wade – removing the jurisdiction of the federal courts to overturn unconstitutional laws.  In other words, “let’s break the system so that we don’t have to abide by the Constitution if we don’t want to.”)

Candidates Mitt Romney and Jon Huntsman did not attend.

This idea of “inherent theocracy” is insidious because those who espouse this view are more likely to appear serious about other Constitutional protections, vigorously opposing attempts by the federal government to track, monitor, and spy on American citizens as a whole.  They can be quite serious about the Fourth Amendment, and many oppose the Patriot Act.

By outward appearances, they take most Constitutional rights quite seriously.  But in this view, all Constitutional rights, no matter how vigorously proclaimed, must surrender to the higher theocratic law.

For example, Religious Right group Alliance Defense Fund excerpts Sir William Blackstone, and summarizes thusly:  “[T]he basis upon which English Common Law sits is a higher law, the law written by God and found in His scriptures. Because of this, man has no authority to write a law that contradicts God’s law.”⁶

It’s comforting to know that the Creator gave us certain unalienable rights.  It’s less comforting to know, however, that this insistence isn’t really about protecting our unalienable rights.  It’s more focused upon identifying which rights “our Creator” says we must never be allowed to have, i.e., any rights that go against the theological doctrines of the inherent, unstated official national religion.

A clear example of this concept comes from a web article at Reclaiming America for Christ (formerly Reclaiming Oklahoma for Christ): “First, there can be no law contrary to God’s law (the Laws of Nature and Nature’s God).”⁸ It then proceeds right into a glaring contradiction: “Second, no law can be contrary to the Constitution.”  The contradiction goes away, in their minds, because they regard theocratic law to be higher than the Constitution.

The modern far right has conceived a highly diversified battery of tactics aimed at seeing to it that the Constitution’s protections of rights and liberties are somehow not applicable when claimed by people or groups that live outside the religious doctrines of certain political leaders and organizations.  Expect several of these tactics to be used together, if that’s what it takes to elevate government power over Constitutionally guaranteed human rights.

In all fairness, the Inherent Theocracy isn’t the most dangerous of the popular anti-Constitutional tactics.  Rejected Supreme Court nominee Robert Bork’s one-time idea, that Congress should be able to overturn Supreme Court rulings by simple majority vote, is vastly more dangerous.

But we can certainly trust that the Inherent Theocracy theory would see to it that the rights of minorities and religious “non-conformists” would enjoy no protection by the Constitution when these rights run contrary to religious law.  And, as history shows, the definition of “religious non-conformist” would quickly expand to include everyone – including other Christians – whose theological stances differ from those in power.

References:

1. Kevin Gutzman, “Bong Hits Case Denies Constitutional Law,” Human Events, 07/11/2007, http://www.humanevents.com/article.php?id=21474
2. Jennifer Jacobs, “Quotes: Michele Bachmann in her own words on marriage, judges, a stolen election,” Des Moines Register, 4/11/2011, http://blogs.desmoinesregister.com/dmr/index.php/2011/04/11/quotes-michele-bachmann-in-her-own-words-on-marriage-judges-abortion/
3. Tom Delay, Washington Times interview, 4/13/2005, http://www.washingtontimes.com/news/2005/apr/13/20050413-111439-5048r/?page=7
4. Candidate Questionnaire Item 20, Conservative Caucus, http://www.conservativeusa.org/candqest2008.htm
5. Thanksgiving Family Forum, 11/19/2011, Des Moines, Iowa.
6. “About Sir William Blackstone,” Alliance Defense Fund, 12/1/2011, http://www.alliancedefensefund.org/Home/ADFContent?cid=3149
7. Shannon McCaffrey, “Gingrich assails judges as he courts conservatives”, Associated Press, 12/19/2011, http://www.chicagotribune.com/news/chi-ap-us-gingrich-judges,0,415215.story
8. “Yes, I am an Ideologue if you mean Biblical Values and Constitutional Liberty”, Reclaiming America for Christ web site, 12/24/2011, http://reclaimamericaforchrist.org/yes-i-am-an-ideologue-if-you-mean-biblical-values-and-constitutional-liberty-2/

In special recognition of Citizens Project’s 20th anniversary, this year’s celebration will present two additional awards: a Legacy Award to long-time Springs resident and activist Sharon Berthrong, and a Divine Organization Award to the Gay & Lesbian Fund for Colorado.

Join us  Thursday, February 2, 2012 from 5-7pm for this unique milestone event at:  Stargazers Theater, 10 Parkside Dr., Colorado Springs, CO, 80910. The celebration is free and open to the public, but a $15 donation is recommended. RSVP by January 27 to RoMa Johnson at RoMa@citizensproject.org, or (719) 520-9899.  View the invitation

Citizens Project thanks our sponsors:

Citizens Project, a local organization dedicated to promoting and protecting equality, diversity and religious freedom through the separation of church and state, supports Tim Tebow’s right to celebrate God in the end zone.

That’s the thing about the First Amendment. The free speech and exercise clauses protect every private citizen. Religious freedom means religious freedom.

Citizens Project also has no fundamental objection to students exercising their right to assemble, pray, or “Tebow” in the hallways of their public schools, assuming they comply with conduct codes and safety standards.

Amid all this “Tebowmania,” however, we must draw an important distinction between the First Amendment rights of individuals and the responsibilities of government. Tebow, fans and students enjoy the free exercise of religion, but teachers and coaches must, by virtue of their employment contract, adhere to the restrictions set forth in the clause prohibiting a government establishment of religion.  Those who fail to do so risk exposing the institutions they serve to expensive litigation, while simultaneously alienating the students entrusted to their care.

In 2011, Citizens Project received calls from concerned parents, students, and teachers in almost every school district in the Pikes Peak region who wanted more information about how to address issues pertaining to religious expression at their schools. We heard about religious-based bullying, teacher condemnation of lesbian, gay, bisexual and transgender students on the basis of biblical teaching, assemblies and ceremonies that integrated religious themes, administrative interference in student club activity, and, most recently, coaches organizing and leading students in Christian prayer.

These aren’t isolated incidents.  For every call we get, there are probably ten students who suffer silently to avoid drawing attention to themselves. After all, they just want to succeed in classes, participate in extracurricular activities, and advance through the public education system. Sometimes the people who contact us resist Citizens Project’s help in negotiating the grievance process or initiating an educational outreach to the affected schools. They don’t want to risk becoming pariahs. They just want someone to tell them, “It’s not okay when the person who assigns your grades or decides when you get to play your favorite sport makes prayer obligatory or singles you out.”  And it’s not.

Religious formation is not the province of a public school official, and objections to compulsory religion in classrooms transcend political differences.

At Citizens Project, we won’t rest until every student can excel in a religiously neutral academic or athletic environment that neither advances nor denigrates religion. We will continue to monitor our local schools for problems and work with the administration to ensure they’re in compliance with the law. We’ll take calls about church-state issues in schools and we’ll offer our support to all parties involved, because we know that violations are usually unintentional. We’ll continue to educate teachers, administrators, students, parents and community members at our annual Citizens’ Religious Freedom Institute and offer continuing education credit to teachers.

Above all, we will stand with our students to ensure they have every chance at success through an inclusive and affirming academic environment that allows them to be exactly who they are, whether that means abstaining from the pledge or “Tebowing” on their lunch break.

Awards

Citizens Project received several honors over the last year including: the Gay & Lesbian Fund Advancing Equality Award, “Ally of the Year” from the Colorado Springs Pride Center, and the “Steady and Strong for Diversity and Inclusion” award from the Colorado Springs Diversity Forum.

Events

Citizens Project events are more than fundraisers or friend-raisers; they’re community in action, bringing together people from across the region and across political and religious lines who share a few key values: equality, separation of church and state, diversity and civic engagement.

– More than 100 community members came out in sub-zero temperatures to honor local activist Mary Ellen McNally at Citizens Project’s 7th annual Divine Award Celebration.

- Four hundred attendees at our annual Creating  Community Breakfast joined together to raise $60,000 to increase Citizens Project’s impact in the community.

- Dozens of volunteers attended our twice-annual volunteer open house and staffed the Citizens Project booth at community events such as Everybody Welcome!, Juneteenth, Cinco de Mayo, and Pride Fest.

Collaboration

CP, in close collaboration with the Women’s Resource Agency, Inside/Out Youth Services and many more, worked to re-invigorate the Pikes Peak Equality Coalition, a group of local nonprofits dedicated to opportunity and access for all community members. Through our collective efforts, we made more than 3,000 contacts with voters in the general election cycle, reminding them to cast their ballots. In addition, CP was represented on the Public Affairs and Government Relations Committee of the Colorado Springs Diversity Forum, the Colorado Civic Engagement Roundtable, and the Safe Schools Coalition.  Citizens Project staff members Kristy Milligan and RoMa Johnson also  presented at events and classes statewide, including: Center for Nonprofit Excellence, UCCS, El Pomar, NAACP, and the Denver Mayor’s LGBT Commission. Citizens Project also donated 18 cubic feet of physical archive files to the Pikes Peak Library District’s Special Collections. The archives will be available to the the public and will be preserved for future generations.

Voter Education

2011 was an exciting year in local elections: from the April municipal election and subsequent mayoral runoff election, to the November general election, there were many candidates vying for the votes of Pikes Peak residents.  And Citizens Project continued our 19-year tradition of providing nonpartisan election education information for all local elections through well-attended Mayoral and City Council forums, and a School Board Candidate and ballot measure forum. In addition, we published two comprehensive candidate survey Voter Guides, one for the municipal election and one for the general election, which were distributed to more than 100,000 people in the Pikes Peak region through our website, a mailing to our supporters, and inclusion in the Colorado Springs Independent.

Promoting Dialogue & Awareness

Citizens Project distributed our electronic monthly Freedom Watch Online to more than 2,000 subscribers, providing them with in-depth analyses of local and national issues, opportunities to get involved, and more. Through our electronic Action Network, we sent 1,500 activists up-to-the-minute updates about pending legislation and electoral initiatives with information about how to make a positive impact on public policy.

Again this year, Citizens Project deployed an awareness campaign to stimulate conversation and tackle some of the most difficult issues facing our community. The campaign appeared in print, online, and on billboards, and it continues to create robust discussion on our blog.

CP also worked with a coalition of twenty five diverse faith and civic groups to present a special film screening to commemorate 9/11.

Creating Inclusive Learning Communities

Our second annual Citizens’ Religious Freedom Institute, a one-day seminar for teachers, administrators, students and community members on how the courts have interpreted church/state separation in public schools and how to promote religious freedom in the classroom, was well-attended and highly rated by participants. Many attendees received graduate credit or contact hours, and, as one participant said, it was a “very enjoyable, informative day.”

Again in 2011, Citizens Project mailed the Anti-Defamation League’s December Dilemma publication to 200 local schools, which contains information about inclusive holiday practices. This year we also worked with Inside/Out and the Safe @School Coalition to provide a primer on recently-passed HB1254, which expands protection from bullying to LGBT students. Additionally, we followed up with several high schools that held their graduation ceremonies at churches to help ensure future commencement celebrations that honor the unique faith traditions of all students, and comply with legal precedent regarding separation of church and state.

All of this was work to advance religious freedom, diversity, equality and civic engagement in the Pikes Peak region was possible because of the hundreds of active supporters, just like you, who gave time, money, energy and vision to help Citizens Project put our mission into motion. Thank you – and we’ll see you in 2012!

Saturday March 10, 2012

Colorado College, Slocum Commons

Participants will learn:

• How the law defines religious freedom in the public school setting,
• Best practices for respecting all students’ religious freedom, and
• How to be an advocate for religious freedom in your school.

In-service credit for teachers and graduate credit is available. Lunch, textbook and supplemental materials are provided to all participants.

To receive information about the Citizens’ Religious Freedom Institute, join our email list for Freedom Watch Online, email Kristy Milligan, or call us at (719) 520-9899.

Click here to download the flier

Click here for the REGISTRATION FORM.

Click here to download the 2011 Citizens Religious Freedom Toolkit.

Additional resource: US Department of Education guidelines

Additional resource: US Department of Education letter and primer

To many ardent church-state separation activists, and I am definitely ardent, opposition to tax-funded school vouchers for religious or parochial schools approaches an article of faith.  Separationists argue that tax aid to religious schools is a plain, flagrant violation of the First Amendment’s Establishment Clause, and may violate state and federal laws by funding institutions that practice religious or other forms of discrimination.

Voucher supporters tend to view such prohibitions as discriminatory against religion or violations of parental rights.

On August 12, Denver District Court Judge Michael Martinez saw the Douglas County Choice Scholarship Program through separationists’ eyes, ruling it unconstitutional.  The school district intends to appeal.

These surface issues that typically make the news, however, miss most of the action that raises deeper concern.  As is often the case when a political movement that normally tries to limit individual liberty takes sides with a “rights” cause, the explanation for the seemingly conflicting ideals begs an investigation.

School vouchers are often portrayed in the guise of parental rights.  The right of parents to direct the upbringing of their children has been the subject of ballot initiatives in several states as well as favorable Supreme Court rulings^{1, 2} that paved legal precedent for Constitutionally protecting a wide variety of unenumerated rights, including the divisive right to an abortion.

An amendment to the Constitution that reads, in part, “The liberty of parents to direct the upbringing and education of their children is a fundamental right¹” looks like something that I could vigorously support.  An amendment that emphatically locks the government out of our family lives would appear to be a powerfully progressive tool.

Yet many of such an amendment’s strongest supporters come from Religious Right groups that openly express legislative goals such as “protecting marriage,” “strengthening the traditional family,” and “policy issues relevant to families from a foundation firmly established in a biblical worldview³” – words that clearly imply a governmental role in shaping and engineering family life.

If that puzzles you, the mystery will begin to disappear when we explore exactly what sort of tool its Religious Right advocates see in it.

A clue appears in a Focus on the Family web article⁴ that criticizes the American Library Association while downplaying Banned Books Week.  A quick guide⁵ page to parental rights articles at citizenlink.org links to it as well as to other pages, most of which object to various sexual issues.

One of the “parental rights” that it alleges is the right to “challenge,” i.e., request the removal of library books that a parent finds objectionable.  Dr. Albert Mohler, president of Southern Baptist Theological Seminary, echoes this view, implying that public libraries somehow violate parental rights⁷ when they carry books that some parents find objectionable.

That raises a question.  If other parents demand that the library affords their children maximum access to the same kind of information, who wins?  Religious Right groups appear to believe that the parents demanding the limitations should win.

In addition, the Focus Citizen Link article⁴ asserts that parents should use their rights to demand that libraries carry, for example, anti-gay materials to balance out perceived pro-gay books.  (That sounds a lot like the old broadcast Fairness Doctrine.)  Ironically, the American Civil Liberties Union has recently sued a Missouri school district for censoring gay-supportive Web sites while allowing anti-gay sites¹³ – a policy supported by many “parental rights” advocates, at least as indicated by comments on accompanying news stories.

Another clue appears in a Parentalrights.org news alert concerning California Senate Bill 48, which involves teaching about the contributions of gay and lesbian Americans.  While the organization’s demand for parental opt-out rights appears sincere, it notes that, in the absence of an opt-out right, “there is no lesser recourse available than to change the entire curriculum for all.⁶”

Citizen Link is more audacious, asserting that “same-sex marriage laws have directly undermined parental rights” by encouraging class discussion of “controversial sexual topics.¹⁰”  (That’s quite an about-face from Religious Right groups’ stances on teaching Intelligent Design alongside evolution, advocated on the grounds that schools should “teach the controversy.”)  Apparently, even other citizens’ marriage choices must step aside to prevent sparking classroom discussions that some parents would rather avoid.

There are, undoubtedly, millions of well-meaning Christian parents who sincerely want nothing more than a right to excuse their children from certain curriculum content.  But as evidenced above, some Religious Right groups view parental rights as a tool to deprive everyone’s children access to information that socially conservative parents find objectionable.  They envision a world in which the rights of “conservative” parents trump intellectual freedom, and can demand removal of “objectionable” library materials despite the wishes and rights of other parents who want no such limitation⁸.

But that is a recurring pattern in far right vernacular, where the words “rights” and “freedom” translate more accurately into “power.”

As I already mentioned, a Constitutional parental rights amendment feels very appealing to me.  But when you realize that Religious Right groups generally consider Antonin Scalia to be a model Supreme Court judge, and it was that same Antonin Scalia who opined that parents have no court-enforceable right to direct their children’s upbringing¹² (Troxel v. Granville, 2000)¹¹, I have some doubts whether “conservative” politicians would return me the favor if my parental stances clashed with their government policies.

What raises my suspicions is the fact that most high-profile parental rights advocates appear to assume that their primary beneficiaries are always conservative religious parents.

Parentalrights.org vigorously opposes the U.N. Convention on the Rights of the Child; one of their specific objections reads, “Children would have the ability to choose their own religion while parents would only have the authority to give their children advice about religion.⁹”

It is odd that granting this right to a child would be objectionable; what if the child in question wanted to become a Christian, yet had stridently anti-religious parents?  Or in this time of fear of “Sharia Law,” what if a child of Muslims wanted to become a Christian?  Would they still side with the parents’ rights?  Or would the child’s religious freedom suddenly be worth defending?  The objection makes sense, however, if it is assumed that the parents who would enjoy these rights are always conservative Christian parents.

It’s also odd that Religious Right groups appear to support near-absolute parental rights, in light of their oft-stated desire to protect children and safeguard their innocence – almost a children’s-rights view in itself.  Again, it all makes perfect sense if it is assumed that only religious or social conservatives are morally qualified to be trusted with parental rights and act in the best interest of children.

This brings me back to school vouchers.  It’s curious, again, that Religious Right groups that support strong parental rights would also support government vouchers for private or religious schools, since many of these schools require, as a condition of admission, that parents surrender most or all of their rights while children are in the school’s custody.  Isn’t that exactly what they were fighting against?

The school voucher and parental rights arguments put forth today are undeveloped, founded in inconsistent and contradictory premises, and are therefore difficult to put together into a coherent ideological or political model.  Implementing either vouchers or parental rights amendments now would certainly have many consequences that their proponents never intended – or might even deeply regret.

To the eyes of a fair and impartial federal judge, a Parental Rights Amendment would not deliver what many of its backers think it would.  Moreover, parental rights are not, in themselves, adversarial in nature to children’s rights.  In the hands of a judge appointed because of his or her sympathy to Religious Right causes, however, the new amendment could likely be applied pursuant to its evident intent which – as often seems to happen – appears to be quite opposite what its enticing words say.

The puzzle pieces, as they seem to fit, tell me that “Parental rights” are apparently intended to mean “special powers for socially conservative parents.”  And school vouchers are merely a temporary shelter from public schools that are considered hostile to faith.  If unrestricted school vouchers for religious schools became freely available, I doubt that the campaigns to stock public school boards with “conservatives” would stop.  Efforts to elect Religious Right majorities to school boards would continue unabated.

On the other hand, if you’re one of the millions who merely want the government to butt out of your parenting, then you might in fact have more in common with me: I share that goal of limiting the government’s involvement in our personal living choices as well.

References:

1. Parentalrights.org, The Annotated [Parental Rights] Amendment, http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={E7900CE9-7AE0-47B3-81F6-CC16B7CAA8A0}
2. Parentalrights.org,  Parental Rights Doctrine, http://parentalrights.org/index.asp?Type=B_BASIC&SEC={3051ABFF-B614-46E4-A2FB-0561A425335A}
3. About Us, Citizen Link, a Focus on the Family affiliate, citizenlink.org, http://www.citizenlink.com/about-us/
4. Citizen Link, “The Truth About Banned Books Week,” Citizen Link, a Focus on the Family affiliate, citizenlink.org, http://www.citizenlink.com/2010/09/28/the-truth-about-banned-books-week/
5. Citizen Link, “Quick Guide: Articles on Parental Rights in Schools,” Citizen Link, a Focus on the Family affiliate, citizenlink.org, http://www.citizenlink.com/2011/04/28/quick-guide-articles-on-parental-rights-in-schools/
6. Parentalrights.org,  “Whatever Schools Teach, Parents Have No Rights,” http://parentalrights.org/index.asp?Type=B_BASIC&SEC={9B1459E6-8710-4884-B9E7-C4D53CE8278B}
7. Dr. Albert Mohler, “Banned Book Week – Parenting at the Mercy of the Local Librarian,” albertmohler.com, http://www.albertmohler.com/2009/10/01/banned-book-week-%E2%80%93-parenting-at-the-mercy-of-the-local-librarian/
8. Alysse ElHage, “The ‘Right’ to Read: Should Intellectual Freedom Trump Parental Rights in Libraries?,” North Carolina Family Policy Council, http://www.ncfpc.org/FNC/0811SF.html
9. Parentalrights.org, “20 Things You Need to Know about the UN Convention on the Rights of the Child,” http://www.parentalrights.org/vertical/Sites/%7BC49108C5-0630-467E-9B9B-B1FA31A72320%7D/uploads/%7BD9F69482-C92B-4BB2-A291-06CBA2B9CF69%7D.PDF
10. Candi Cushman, “Parental-Rights Backlash Is Brewing,” Citizen Link, http://www.citizenlink.com/2010/04/26/parental-rights-backlash-is-brewing/
11. Troxel v. Granville (2000), Supreme Court of the United States, http://www.law.cornell.edu/supct/html/99-138.ZS.html
12. Antonin Scalia, Troxel v. Granville (2000), Supreme Court of the United States, http://www.law.cornell.edu/supct/html/99-138.ZD1.html
13. Suzanne Ito, “ACLU Sues Missouri School District for Illegally Censoring LGBT Websites,” aclu.org, http://www.aclu.org/blog/free-speech-lgbt-rights/aclu-sues-missouri-school-district-illegally-censoring-lgbt-websites

“You can’t legislate morality!”  Few colloquial expressions depend more upon connotation than does this short, forceful proclamation of liberty.  And because it asserts liberty, few colloquialisms have weathered such a long, sustained, unrelenting campaign to discredit it, refute it and extinguish it from American parlance.

Most everyone knows what the expression means.  It means that we don’t, or shouldn’t, legislate moral beliefs based solely in tradition or religious beliefs.  Unfortunately, people and groups who wish to do exactly that have been attacking this axiom of freedom ever since.  Here I will explore one way that the phrase is attacked, and I will answer that while putting morality and ethics into clearer perspective.  I will explain why legislating morality is bad and wrong.

Wrong.  Was that a value judgment?

Perhaps the most common counter-claim is “every law legislates morality,” therefore “you must legislate morality.¹”  Those who argue that we cannot escape legislating morality typically list murder and theft as common examples, but they sometimes go farther, asserting that even speed limits² and no-smoking areas are legislation of morality.

One’s first reaction to these might be a sharp, involuntary gasp at what looks like an absurd word game meant to cloud the obvious issue, or to make bedroom laws sound as legitimate as homicide laws.  It would be a mistake, however, to miss an opportunity to examine morals, ethics, and the purposes of legislation.

Laws against murder, theft, speeding and running red lights exist to protect public safety, and to provide security in one’s person and property.  They are not enacted out of a belief that it’s a religious or moral sin to roll through a stop sign.

Though the words “morals” and “ethics” are sometimes used interchangeably, their connotations, i.e., their implied meanings are often different.

The familiar implied definition of “morals” was not lost on Supreme Court Justice Antonin Scalia when his dissent in Lawrence v. Texas³ forebodingly lamented that overturning Texas’ sodomy laws – and all similar laws – “decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.⁴”

Scalia clearly understood the connotation behind “legislating morality,” legislating citizens’ private consenting behavior, usually related to sexuality.  He clearly was not saying that the Lawrence decision would put an end to all laws against murder, theft, rape, or speeding.

Thank you, Mr. Scalia for getting us back on topic.  Laws against murder and other public safety concerns are not examples of “legislating morality.”

“Ethics,” on the other hand, connote behavior or conduct as it affects, helps, or harms other people.  Murder, theft, fraud, false advertising, willful environmental pollution, and slander are clearly questions of ethics.  To a considerable extent, we do legislate ethics because of their relevance to safety and security.

These basic ethical principles are integral to human social nature, and are discovered naturally by most all people who grow up and develop normally.  We learn, through empathy and through the bitter experience of having it done to us, that it’s wrong to go around lying, cheating, stealing things or beating people up.  A natural sense of right and wrong is the inevitable product of an intelligent social species whose members must at once cooperate, co-exist, and compete.

It is therefore not surprising that these tenets, as well as treating others as we like to be treated, are teachings common to virtually all world religions and philosophies.

The Christian faith describes these ethics as “written on our hearts” (Romans 2:14-15), and notes that to love your neighbor (James 2:8) and not harming them (Romans 13:10) fulfill the spirit of the law.  The Affirmations of Humanism state that ethical principles can be discovered⁵ and tested by observing their consequences.  From culture to culture, these universal principles are exalted in words and ideals, if not always in deeds.

I describe these universals as “values that you can explain to someone else’s child, regardless of race or culture.”

It’s interesting that, when political activists talk of promoting moral values, they are rarely referring to these universal ethics.  What they strive to legislate instead are, more accurately, social customs — many of which seem, to me, arbitrary and sometimes even harmful, but which have been retained and perpetuated by cultural reinforcement alone, often through the teachings of religions.

You can explain to anyone’s child why murder and stealing are wrong.  It’s not so easy, on the other hand, to explain to a child raised in a primitive aboriginal (or advanced northern European) culture that nudity or non-marital sex is wrong.  “Why,” the child asks.  “Well, it just is!  It isn’t proper!” you plead.  You soon discover that you’re getting nowhere fast, and the explanation is actually easy:

Such moral beliefs are rooted in inherited cultural customs rather than universal human social nature.  It is impossible to communicate these ideas by appealing to universal ethics.  They are subjective in my secular view, having little justification apart from habit, convention or tradition.  As Antonin Scalia appears to note, they cannot survive rational basis review alone.

I do understand and appreciate that devout religious believers consider their doctrines to be stipulations of fact.  But to accept a faith’s teachings as fact, one must first adopt the faith itself – and as anyone experienced in Christian apologetics knows, convincing a person of a different or no religion (or a critical thinker) of the faith’s factual basis is practically impossible.  The believer must accept on faith that its teachings are fact.

It is perhaps because of this difficulty of convincing others, by reason alone, of deeply held traditional beliefs that political force is so often sought to enforce these conventions.  That feeling of powerlessness to persuade others, rationally, to accept one’s own deeply held moral beliefs, tempts some to resort to legal force — which is, after all, a standing threat of physical force.

It is because legislation amounts to a codified threat of physical force and punishment that makes the legislation of non-universal “opinion morals” ethically wrong.  It is little better than threatening your neighbors with violence because you don’t like how they live.  It may follow an orderly pattern of due process and appear to inherit the legitimacy lent by state sanctioned authority, but it is base aggression nonetheless – hardly in keeping with the Golden Rule, or with the Christian faith’s teaching to live in peace with those around us.

There’s a more serious reason why legislating these morals is harmful and wrong, however.  These moral opinions, particularly sexual opinions, have a curious way of being quickly blown out of proportion, and being so wildly exaggerated, that grave ethical priorities such as public safety and peace get pushed aside – both in the importance that we give to each, and the amount of public resources that we invest in them.  Police that could be working the gang unit are deployed to “vice” instead.  When being an unwed mother is considered worse than shoplifting, when otherwise rational and sane Americans begin seriously predicting the end of the world, catastrophic disasters, or the collapse of our nation because a few people might skinny-dip co-ed or marry their own gender, then, in my opinion, we have a “proportion and perspective” problem.

One of the most extreme examples of how a culture’s obsession with “sexual morality” can actually corrupt a culture’s ethical compass is given in the stories of Middle Eastern “honor killings” where family members kill their own daughters caught violating “sexual laws.”

We see something similar but milder coming from some members of American culture.  We heard, in the hurting days immediately after the 9/11 attacks and Hurricane Katrina, certain preachers almost finding satisfaction in the thought that these calamities were “God’s punishment” for our “depravity.”  One radical Catholic preacher’s frothing anti-sexual tirade speculates that the Space Shuttle Challenger disaster was perhaps an act of God meant to punish the use of contraceptives⁷.

The murderous Norway extremist Anders Behring Breivik was reportedly fueled in part by hatred of women, feminism, and women’s sexual freedom⁶.

In the minds of these beholders, sexual morals become so important, or so singular an obsession, that human life itself is devalued in comparison.

Truly, these are extreme examples of broken ethical compasses.  But if American politics reach a point where enough Americans feel that it’s more important to legally punish private non-conformity or recreation than it is to protect human life, or promote the overall physical safety and mental health of our citizens, or lead the world in scientific progress, achievement, and educational excellence, then we have reached a point where our values have become scrambled, distorted and re-ordered enough to do much more harm to America’s ethical foundations than good.

When a politician who campaigns on science and math education, and funding for space or our public colleges and universities, can barely raise enough campaign money for one TV ad, while another candidate who promises to stick it to the gays and step up the war on sex can rake in tens of millions, that is when we as a nation have become lost in a minotaur maze of misplaced values.

At least I own a mirror and use it, for I know that my own foreboding warnings about our nation’s ethical compass sound a bit like the very people whom I criticize.  Yet we already see it happening in other parts of the world, where cultures forsake health, education and prosperity in favor of crushing women’s rights and brutal, overarching punishments for perceived sexual misconduct.

If it happens there, it can happen here, if we permit it.  We’re all human beings with the potential for misplaced sub-human aggressions.  I am doing my part to prevent our culture from resembling the very parts of the world that many Americans fear.

Certainly, people who believe that homosexuality or non-marital sex is wrong are free to continue in their faith.  We do have freedom of religion, after all, and there is real beauty in “saving yourself for marriage” if you consider abstinence sacred.  Live by your moral values, for they are indeed sacred to those who hold them.  Live them well, and Scripture teaches that your exemplary life will be an effective living witness (1 Peter 2:12).

But please, let’s maintain perspective and not let worry over select perceived sins or other people’s sexuality grow so disproportionate that our obsession with “curing” or “correcting” them pushes aside all the values that made America great: freedom of choice and religion, opportunity for prosperity, physical safety, self-determination, education, and science.

We’ll never get back to the moon if most of our resources are busy micromanaging one another and keeping our fellow Americans down.

References:

1. Selwyn Duke, “The reality about legislating morality,” RenewAmerica.com, 9/14/2004, http://www.renewamerica.com/columns/duke/040914 .
2. Chuck Colson, “Remembering Russell Kirk,” Townhall.com, 10/24/2003, http://townhall.com/columnists/chuckcolson/2003/10/24/remembering_russell_kirk .
3. Lawrence  v. Texas (2003), United States Supreme Court, http://www.law.cornell.edu/supct/html/02-102.ZS.html
4. Antonin Scalia dissent, Lawrence  v. Texas (2003), United States Supreme Court, http://www.law.cornell.edu/supct/html/02-102.ZD.html
5. Affirmations of Humanism, http://www.secularhumanism.org/index.php?page=affirmations&section=main
6. Michelle Goldberg, “Norway Killer’s Hatred of Women,” The Daily Beast, http://www.thedailybeast.com/articles/2011/07/24/norway-massacre-anders-breivik-s-deadly-attack-fueled-by-hatred-of-women.html
7. Fr. David Trosch, “Distillation or DOOM Will it begin on October 5, 1997?”, http://www.trosch.org/the/7oct05.htm

Saturday March 12, 2011

University of Colorado at Colorado Springs

Participants will learn:

• How the law defines religious freedom in the public school setting,
• Best practices for respecting all students’ religious freedom, and
• How to be an advocate for religious freedom in your school.

In-service credit for teachers and graduate credit is available. Lunch, textbook and supplemental materials are provided to all participants.

To receive information about the Citizens’ Religious Freedom Institute, join our email list for Freedom Watch Online, email Kristy Milligan, or call us at (719) 520-9899.

Click here to download the flier for educators.

Click here to download the flier for parents, students and the public.

Click here for the REGISTRATION FORM.

Click here to download the 2010 Citizens Religious Freedom Toolkit.

Citizens Project is proud to present the first Citizens’ Religious Freedom Institute, a one day seminar on how the First Amendment to the US Constitution protects religious freedom in public schools. For teachers, students, parents, administrators, staff, school board members, and open to the public.

Saturday April 17, 2010

To be repeated on Sunday April 18 pending sufficient enrollment
University of Colorado at Colorado Springs

Participants will learn:

• How the law defines religious freedom in the public school setting,
• Best practices for respecting all students’ religious freedom, and
• How to be an advocate for religious freedom in your school.

May provide in-service credit for teachers. Please check back for details.

To receive information about the Citizens’ Religious Freedom Institute, join our email list for Freedom Watch Online, email Barb Van Hoy, or call us at (719) 520-9899.

Click here to download the flier for educators.

Click here to download the flier for parents, students and the public.

Click here for the REGISTRATION FORM.

Click here to download the Citizens Religious Freedom Toolkit.