Monday, April 8, 2013

It's Complicated: A More Subdued Rant on the Separation of Church and State

One of the problems with learning is that it never stops.  That's also one of the great things about learning, depending on the day, but today's Monday, and I've got a problem with it.  I can't find easy answers to anything today.  It's clear I should have taken philosophy in college, but it's a little late for that.

OK, so, last week I learned, from an atheist friend of mine, that it was against the law for atheists to hold public office in the state of Tennessee.  She sent me a link about it, but I didn't look it up; quite frankly, it sounded like something Tennessee would do.  (I love my state, and appreciate its basic less-is-better approach to government, but it also produced the Scopes monkey trial.  Enough said.)  But I thought about what my friend told me; I wondered if it were true, and, if so, how true.  I mean we've all seen those books of weird laws still in place somewhere, "you can't ride a horse down Main Street in Grand Rapids, Michigan, while eating sausages," etc.   And yet--any law forbidding something because of a lack of religious faith was clearly in violation of the separation of church and state--wasn't it?  I thought so.

So I broached the topic on Saturday night, when we had friends over to eat pizza and watch Louisville win.  My family loves a good debate, and fortunately (because I didn't want them to think we were nuts, or naturally contentious) so did the other family; within minutes, we were arguing about what was actually meant by "separation of church and state," what the Bill of Rights does or does not guarantee, and whether state law trumps federal law or the other way around.   In the midst of healthy chaos, my friend Beth quietly got out her cell phone and texted her brother.  He happens to be Lieutenant Governor of the state of Tennessee.

No, he said, it was not against the law for atheists to hold public office.  There was no "religion test."  He did opine that it would be difficult for an atheist to get elected in Tennessee, "even in Memphis," but that's a whole 'nother story.

At roughly the same time, my daughter, who'd gotten online, read out loud the part of Tennessee's state Constitution where it says quite clearly that atheists can not hold office.  However, that line was highlighted, with a footnote to the effect that, forget it, this part's been declared fully null and void.  The legal battle has already been fought; the separatists already won.

So, it's true, but also false. 

I'm reminded of something I learned while writing my book Jefferson's Sons.  Thomas Jefferson's children with the enslaved Sally Hemings were legally slaves, because the children of an enslaved mother were always slaves.  Therefore, they were legally black, because white people could not legally be slaves.  However, because they were 7/8ths white (Sally was 3/4 white), they were also white.  They were legally black and legally white.

I want to do a post on the origins of the United States Constitution, but I can see that one is going to get complicated, too.  Already I've learned that U.S. democracy is considered fundamentally different from European democracy, in that we proclaim the rights of the individual instead of the rights of mankind.  The difference there seems hair-splitting to me.  Greg Brubaker?  Wanna help me out here?  (My brother's not in politics, but he majored in philosophy.)


  1. Objection. Greg is in politics. People have defriended him from Facebook for debate nights.

  2. Just because a law is unconstitutional based on case law does not mean that it won't be enforced. For example, in my state of Virginia, our Attorney General, Ken Cuccinelli, used a law still on the books declaring sodomy and oral sex a felony to try a man who solicited oral sex from a 17 yo (age of consent in VA is 15, sex with a minor over the age of consent is a misdemeanor). The long and short of it is that despite the appeals court declaring that using this particular law to try the guy (who is scum, no doubt) is unconstitutional based on a decision in Texas. Cuccinelli's office is trying to play this off as protecting kids of VA but he objected to an attempt several years ago by the legislature to modify the sodomy law to be limited to cases involving prostitution, public sex, and sex with minors (which would have made the law both reasonable and constitutional), making it clear that he wanted to designate what consenting adults could do in the privacy of their own homes, based on his radical religious beliefs.

    So laws that remain on the books that are clearly unconstitutional are still sometimes enforced. I think I have mentioned it before, but I suggest anyone with an interest in this topic read "Candidate Without A Prayer" by Herb Silverman. It's an entertaining book (true story) about an atheist who tried to run for public office in South Carolina.

    The law in Tennessee (and a number of other states) regarding public office is clearly unconstitutional, but that does not mean it cannot be enforced, it only means that it is very likely to be overturned on appeal. If the person involved decides to take it that far.

    I do agree with the Lt. Governor that it would likely be impossible for an open atheist to be elected in TN, or in virtually any other state. There is, I believe, only one open atheist in Congress.


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