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Published June 21, 2024

Thinking clearly about how religion and the law interrelate

We are not beholden to the Founding Fathers’ worldview; but we can’t rewrite their words either.

Americans are talking at cross-purposes. A look at the Dec. 9 Opinions page proved this better than anything. Nearly all contributions dealt with ethical and moral questions and the role of religion in the public sphere.

The discussion ultimately revolves around the role of the First Amendment. The intentions of the Founding Fathers have been discussed from both sides of the political spectrum. Progressives have asserted that the Christian right is hijacking those intentions and violating the mandated separation of church and state, while conservative Christians maintain that, as Christians, the Founding Fathers could not imagine a state not ruled by Christian morality.

Both of these arguments are nauseatingly simplistic. Part of the reason why the Founding Fathers included a prohibition against establishing a state church was that they had seen the evils of Britain’s state church system forced down the throats of U.S. colonists. In reality, their views of religion differed enormously.

For instance, Thomas Jefferson’s way of interpreting the Bible (cutting and pasting together his own version) was hardly mainstream, to say the least. On the other hand, though, the phrase “separation of church and state” is a careless abbreviation of the actual text of the First Amendment, which says nothing about the mandatory absence of all hints of religion from public office. In fact, it even guarantees the right to worship freely and without hindrance. That might include a president who prays before going to work.

Since the country’s independence, though, many developments have changed not only the reality in which the constitutional rights are functioning but also our view of what they should be – essentially, two sides of the same coin. These changes have gradually widened the gap between those who interpret the Constitution according to the framers’ intentions, and those who do so as that document applies to the present. Both are logical positions because they are internally consistent views but both stem from different basic assumptions about what law should be.

As a conservative and a historical linguist, I believe you cannot make the founders’ text say what you want it to mean in the present. Words change, but intentions cannot. For instance, when Charles Dickens wrote in “Barnaby Rudge” in 1841, that “destruction has been wanton,” he did not mean to imply lasciviousness. Thus it would be unfair to ascribe that intention to Dickens. The word “wanton” meant something else.

Similarly, it would be unfair to claim that the Founding Fathers had the intention to express legal opinions about concepts that did not exist in their time.

But ever since the rise of postmodernism, the competing view has become more prevalent. Modern theories of text interpretation hold that a text only comes into being in the relationship between it and the reader.

Thus many lawyers who adhere to this theory believe that the Constitution can only have meaning as it is interpreted by lawyers and judges in the present day. It is ultimately a philosophical disagreement about the nature of meaning in legal texts.

We should not think of the Constitution as a bill of sale that sold us all into slavery to the Founding Fathers’ immutable view of the world. As it was conceived, the Constitution was incomplete, as the later amendments about the abolition of slavery and women’s suffrage show.

But you cannot make the Constitution itself – or a federal court – say what you want it to say. If something is missing, make Congress put it in, but do not pretend it is already there.

So Corbin Hilgeman’s opinion on Dec. 9, “Is a Christian state better?” got the wrong end of the stick. Christians should not want to establish a Christian state or a state religion. It clearly violates the First Amendment. But Christians are allowed to bring their worldview to work.

They can hold office and believe certain laws to be morally wrong as well as unconstitutional. Public institutions can include the physical or intellectual legacy of religious groups – including Christians – in any exhibit or educational program, as long as people are not forced to subscribe to the views of these groups.

Unfortunately, the dividing line between private and public, religious and political views can sometimes be very blurry. So many Americans want that line to be more clearly defined. The disagreement is about where to draw it.

Progressive Americans insist that opposition to abortion, same-sex marriage, embryonic stem cell research, evolutionary theory and comprehensive sex education is a religious belief and therefore invalid in the public arena.

This leaves Christians with the burden of proving that they hold their views not merely because of their religion but also because of a logically consistent view of the facts. I believe that is possible. After all, no Christian rite requires a lobotomy.

Michael van der Hoek is a University graduate student. Please send comments to [email protected].

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