Ain't Nobody's Business If You Do

PART II: WHY LAWS AGAINST CONSENSUAL ACTIVITIES ARE NOT A GOOD IDEA

Laws Against Consensual Activities Violate The Separation Of Church And State, Threatening The Freedom Of And From Religion


The government
of the United States
is not, in any sense,
founded on the Christian religion.
GEORGE WASHINGTON
Treaty of Tripoli
1796
IN 1982, ON THE CELEBRATION of his ninetieth birthday, Dumas Malone, noted historian and Thomas Jefferson biographer, was asked, "What is the most fortunate aspect of American history?" Malone replied,

The fact that we became a nation and immediately separated church and state—it has saved us from all the misery that has beset mankind with inquisitions, internecine and civil wars, and other assorted ills.

True, but there is little doubt that America was founded on the passionate pursuit of the Almighty—Almighty God and the Almighty Dollar.
Less than seven weeks after arriving in the New World, Columbus wrote in his journal,

And I say that Your Highnesses ought not to consent that any foreigner does business or sets foot here, except Christian Catholics, since this was the end and the beginning of the enterprise, that it should be for the enhancement and glory of the Christian religion, nor should anyone who is not a good Christian come to these parts.


What a pity,
when Christopher Columbus
discovered America,
that he ever mentioned it.
MARGOT ASQUITH

From the start, commerce and religion; religion and commerce. Thus began—from the Christian European view of world history—the American dream.

A little over a hundred years after Columbus's 1492 holy business expedition, those who spoke English and worshiped the Almighty Pound began arriving in the New World. Virginia was settled by Sir Walter Raleigh more for his personal gain and financial enhancement than for the glory of God (he never set foot in the colony himself). The original settlers of the colony had the idea that the Indians would do all the work and the white man had only to provide ideas and direction. But somehow the native tribes in Virginia—those savages!—failed to cooperate. The intrinsic intellectual superiority of the white man somehow escaped these Native Americans. Eventually, the colonists were asked by their leaders to work. Each man, woman, and child in the settlement was given a military rank. The duties of each rank were spelled out to the smallest detail. Penalties were harsh—whipping for a second offense and a year on a British prison ship for a third offense. Complaining was not permitted, and there was no going back to England—this is your life, Virginia.

All of this oppression was done, of course, in the name of God. What God wanted—and was kind enough to communicate to the settlers by way of the British crown—was tobacco. A powerful strain of Virginia tobacco was popular in Great Britain. God wanted the people of England to have their tobacco (making the first cash crop from America a drug). In addition, God wanted the investors in the Virginia Company to turn a profit on their investments and, by God, if it took a police state to bring about God's will, so be it.


Perhaps, after all,
America never
has been discovered.
I myself would say that
it had merely been detected.
OSCAR WILDE

IN The Name of God, Amen . . . Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the honour of our King and Country, a voyage to plant the first colony in the northern parts of Virginia. . . .

So began the Mayflower Compact of 1620. No secular voyage this. On board the Mayflower, the other passengers referred to a third of the passengers as "pilgrims" because they were on a religious quest. They were journeying to the New World to found the City on the Hill, the New Jerusalem. It was to be a shining beacon for the entire world; proof not only that Christianity was the One True Way, but that their specific interpretation of Christianity was the One True Interpretation. Besides, England had had enough of them. They were known as the Puritans, and, goodness, were they pure. Protestants protested against Catholicism and Puritans protested against Protestants. Even though the Protestants had overthrown the Catholic church in England—a monumental undertaking—the Puritans wanted to purify Protestantism even further. By the early 1600s, England had been through decades of religious wars and was temporarily tired of it all.

The Revolution was effected before the War commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations . . . This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.
JOHN ADAMS
February 13, 1818

In 1534, King Henry VIII separated from the Catholic church ("the Church of Rome") and established Protestantism as the official state religion—the Church of England. Although a major advance for Protestantism, the new religion still didn't please the Puritans. It was, they thought, the same old Catholic hierarchy and form of worship under a new name. When Queen Mary ascended the throne in 1553, Roman Catholicism returned to England; a great many Protestants—especially Puritans—were executed or exiled. In 1558, with the ascension of Elizabeth I, Protestantism returned. Although Protestant, Elizabeth still wasn't pure enough for the Puritans. They continued to protest and, of course, were repressed.

The Puritans spent the next forty-five years being pure anyway. Like the Pharisees of old, they established elaborate customs to separate themselves—the chosen elite—from the heathen, condemned-to-perdition, mainstream Protestants and the completely-lost-from-all-hope-of-salvation Catholics. Nearly every aspect of Puritan life was set, regulated, and ordered. The smallest detail of lifestyle became a religious function which either glorified God or condemned one to hellfire.

In 1603, the Puritans had their last, best hope when King James IV of Scotland became James I of England. King James was a Calvinist and the Puritans thought of themselves as Calvinists (although after the death of John Calvin in 1564, the Puritans' form of Calvinism had become more severe than even Calvin prescribed). The Puritans presented their many grievances to King James I in 1604, but, as the Puritans were not part of the power structure, they were dismissed. "No bishop, no king," James told them. So, the Puritans set their sights on the New World.


A puritan is a person
who pours righteous indignation
into the wrong things.
G. K. CHESTERTON

The Puritans were well-educated, hard-working (the "Puritan work ethic" lives today) and influenced the educational and business communities of England. They decided to demonstrate to the world how Puritanism (which, of course, they thought of as the true Christianity) could flourish when not repressed by Catholics and quasi-Catholics (Protestants). It would be a community of such spiritual integrity, moral purity, and economic productivity that all the people of the world would herald it a success; the scales would fall from their eyes; they would drop their chains of religious oppression; and the world would be Puritan Calvinistic Christian for ever and ever, amen.

By 1620 these pilgrims were ready to go. They sailed for the New World, the spiritual destiny of humankind resting on their shoulders. Their goal was Virginia, but God apparently had more northerly plans. The ship was blown off course. Considerably off course. They landed in Massachusetts.

Hmmm. This meant they were no longer bound by the agreements they had made with the Virginia Company. While still on the Mayflower, they made their own Compact. Unshackled from the economic bonds of the Virginia Company, they were now free—to freeze to death. It was colder than anyone imagined. (Massachusetts is like that.) As Ulysses S. Grant later explained, "The Pilgrim Fathers fell upon an ungenial climate, where there were nine months of winter and three months of cold weather."

Due almost entirely to the compassion, openness, and generosity of the Native Americans (whose behavior was downright Christian), more than half of the Puritans survived their first winter in what is now Plymouth, Massachusetts. The Native Americans taught the pilgrims how to hunt, fish, and grow crops; showed them which plants were nutritional, which were medicinal, and which were purely recreational.


My ancestors were Puritans
from England.
They arrived here in 1648
in the hope of finding
greater restrictions
than were permissible
under English law
at that time.
GARRISON KEILLOR

The pilgrims learned quickly, applied what they learned with diligence, and made a success of things. Everything went along fine until the next generation grew up. Those pesky youngsters! The pilgrims soon learned what a brief study of history could have taught them—religious belief is not always hereditary.

Those who toed the line of Puritan orthodoxy were part of a group, a community, an extended family where life was congenial and everyone helped each other. Those who strayed from the fold (by being either less devout or, in rare cases, more devout than the elders considered proper) were punished. If punishment didn't bring them into line, they were banished. Connecticut and Rhode Island were founded by improper Puritans.

And then there were the French. Good God, the French! Some had no religion at all, and those who did were what only could be called Bastard Catholics. The French weren't after religious freedom; they were after beaver pelts. And stories were circulating that the trappers were having more than social intercourse with the Indians.

This, as it turned out, was quite true. Some members of the Native American tribes admired the white man and offered their women to him; the offspring were proudly raised within the tribe. News of this flexible, casual, experimental quality of the Native Americans was brought back to Europe by the French trappers. This influenced the French philosophers—particularly Rousseau—who found it a perfect example of man living in nature, enjoying his inherent natural rights. This philosophy was brought back across the Atlantic in the works of Rousseau, Voltaire, and John Locke. It inspired Franklin, Jefferson, Paine, and others in shaping their political philosophies.


America's one
of the finest countries
anyone ever stole.
BOBCAT GOLDTHWAITE

The Puritan adventure was but one example of religion motivating migration. Lord Baltimore settled Maryland in the hope of establishing a haven for Roman Catholics. Although most of the settlers were Protestants, the land was owned by Catholics. (Not unlike New York City today.) The fastest method of advancement in the colony was to "see the light" and convert to Catholicism.

The Dutch settled New Netherlands for purely economic reasons. Peter Stuyvesant took what he learned about authoritarianism, control, and domination from his Calvinist minister father and applied it to the practice of making money for the Dutch West India Company. When the English captured the colony in 1664, it became New York, named after the Duke of York. When the Duke of York became King of England in 1685, New York became an official crown colony.

North and South Carolina, it was thought, would be ideal places to produce silk. (They were not.)

Georgia was settled so that the inhabitants of Britain's overcrowded debtors' prisons could start a new life. The restrictions were harsh; the limitations economic, not religious.

William Penn knew well the dangers of following an unpopular religion. Penn was a member of the Society of Friends—the Quakers. In England, he was fined and ultimately dismissed from Oxford for refusing to attend chapel. He was imprisoned four times for writing or speaking his religious beliefs. He intended his Pennsylvania (the woodlands of Penn) to be a haven for all religious minorities, not just Quakers. Most of his time was spent persuading the British government to allow his "holy experiment" to continue. This kept him in England and, consequently, Penn only spent two two-year periods in the colony that bore his name. It was because Penn not only tolerated but welcomed diversity that Pennsylvania became the most diverse, dynamic, and prosperous of the original thirteen colonies. This provided fertile ground for free and, later, radical, and later still, revolutionary thinking. By 1776, Philadelphia was the largest city in the thirteen colonies, with a population of 40,000. This was larger than Boston and New York combined (24,000).


I'm really
a timid person—
I was beaten up
by Quakers.
Woody Allen

By 1770, the British American Colonies had become a billion-pound enterprise, importing more than 1 billion of goods from England and exporting nearly 2 billion. The effects of religion were still felt—even the centers of higher learning (Harvard, Yale, Princeton) began as religious institutions. For the most part, however, by the early 1770s, currency was king in the colonies.


Voltaire gloried in the name Deist.
The Catholic Church
in 18th-century France
did not recognize
fine distinctions among heretics,
and Deist and atheist works
were burned in the same bonfires.
ENCYCLOPEDIA BRITANNICA

Trying to re-establish their influence, churches with once-rigid restrictions on membership opened their doors to all. "Harvests," they were called. God, not man, chose who would and would not find salvation. With some good ol' hellfire and brimstone preaching, the fear of damnation, and the knowledge that only God could save them from the eternal flaming pit, the congregates had experiences we would now call "born again." The time was known as the Great Awakening. While still high on the ecstasy of deliverance, the new converts were convinced that the rules and regulations of that particular variation of Christianity were what God desired—in fact, demanded—if one wanted to be truly and permanently saved. The ecstasy of the Awakening was just a taste of what one could look forward to in paradise—provided one followed God's laws here on earth without deviation or question. The alternative? An eternal afterlife of bubbling sulfur.

On the cooler end of the spectrum were the great thinkers of the Enlightenment. Deism was the religion of the age of Enlightenment. If reason could be applied to government, science, and philosophy, surely (they reasoned) it could also be applied to religion. That there was a God, in the form of a creator, was reasonable; something had to create this incredible universe—the wonders of which were, through travel, telescope, and microscope, being revealed daily—and something had to account for the miracle of life itself.

"An overruling Providence," Jefferson called it, "which by all its dispensations proves that it delights in the happiness of man here and his greater happiness hereafter." Jefferson also referred to the creator as "that Infinite Power which rules the destinies of the universe." Neither of these statements was privately written by Jefferson and communicated to a select group of friends; both came from his first inaugural address.


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.
THOMAS JEFFERSON

Washington, in his first inaugural address, referred to this power as "the Great Arbiter of the Universe." Deists called this power "God" or "the Creator."

The Deists were not Christians. This comes as something of a shock to the religious right, who decorate their homes with Early American furniture, or the conservative Daughters of the American Revolution who make almost religious pilgrimages to Mount Vernon and Monticello. It is, nonetheless, true that our first three presidents—Washington, Adams, and Jefferson—(as well as Benjamin Franklin) were Deists, not Christians.

The Deists admired, even loved, Jesus as a teacher and an example ("Imitate Jesus," Franklin reminded himself), but Deists had little use for the portion of the New Testament that did not deal directly with the life and words of Jesus. They did not believe in "the revealed word"—Peter, Paul, John, the prophets, Moses, it didn't matter. If God wants to reveal something to me, a Deist reasons, He certainly has the power to reveal it to me Himself. What Jesus did and actually said while on earth was studied and deeply appreciated. Studied too, according to founding father Samuel Adams, were "Confucius, Zoroaster, Socrates, Mahomet [sic]" and other teachers and sources of wisdom.

Benjamin Franklin, the great sage of the colonies and then of the new republic, summarized a personal creed that almost literally reproduced [Deism's] five fundamental beliefs. The first three presidents of the United States also held Deistic convictions as is amply evidenced in their correspondence.
ENCYCLOPEDIA BRITANNICA

It was not so much who said or wrote something, but whether or not what was said or written rang a bell of truth within the reader. This indicator of truth within the reader, it was believed, was put there by the Divine as a way of divining truth from falsehood. Whatever a Deists would read—be it Bible, book, or almanac—they would listen for the bell.

Deists therefore found something of value in all religious practices: for example, the Quaker custom of sitting quietly and listening for revelations was much admired.

Deists did not believe in damnation. They believed that God only wanted what was good for humanity, and hell was not reasonable from one who wanted only good. Deists believed in repentance: if they wronged another person, they made it up to that person. God, being God, did not need to be apologized to.

Deists believed that God—like all good creators—after creating Creation, went off to create something else. One can see, admire, and even stand in awe of Michelangelo's David and not expect to see Michelangelo nearby answering questions, accepting praise, or fulfilling requests. Nietzsche's idea that "God is dead" seemed in 1890 to be the height of blasphemy, heresy, and bad taste. The Deists, however, would have no trouble with this concept. They might be momentarily saddened to hear of Michelangelo's passing, but it would not interfere with their enjoyment of Michelangelo's creations.

Deists did not pray. They may have given praise, as in "Lord, what a beautiful morning," or "Lord, what a beautiful painting," but they did not pray to make requests. They believed that, as part of the creation, God created logically discoverable methods by which needs, desires, and wants could be fulfilled; and by discovering and practicing these techniques, one could fulfill one's desires. God may have set up the system, but was not necessary for the delivery any more than Benjamin Franklin, who created the postal system, needed to deliver each letter personally.


It is much to be lamented
that a man of Dr. Franklin's general
good character and great influence,
should have been
an unbeliever in Christianity,
and also have done so much as he did
to make others unbelievers.
DR. JOSEPH PRIESTLEY

"I simply haven't the nerve to imagine a being, a force, a cause which keeps the planets revolving in their orbits," said Quentin Crisp, "and then suddenly stops in order to give me a bicycle with three speeds." If you wanted a bicycle with three speeds, the Deists believed, you did what was necessary to get the money and then went to the bicycle shop and bought one. Knowledge, planning, and work were required, not prayer.

Deists didn't believe in the sole divinity of Jesus (they took seriously Jesus' statement, "Anyone who has faith in me will do what I have been doing. He will do even greater things than these" [John 14:12]). Because of this, and because Deists did not believe in hell or eternal damnation, most Christians disapproved of Deists. Christians denounced the Deists as heretics who were too cowardly to say what they really were: atheists.

Not suffering the condemnations of Christians gladly, Deists accused Christians of turning God into a tyrant for their own selfish ends. It was an unfriendly stalemate at best. From the Encyclopedia Britannica:

The Deists were particularly vehement against any manifestation of religious fanaticism and enthusiasm. . . . Any description of God that depicted his impending vengeance, vindictiveness, jealousy, and destructive cruelty was blasphemous. . . . The Deist God, ever gentle, loving, and benevolent, intended men to behave toward one another in the same kindly and tolerant fashion.

As Deism became increasingly refined, it eventually evaporated by the mid-1800s, a victim of its own refinement. It was a little too cool for those who wanted a religion with history such as Roman Catholicism, with popes going back to St. Peter, and, hence, to Christ; or one of the evangelical religions in which one experienced—even if only for a moment—the promised bliss of salvation.


A substantial portion
of Deist literature
was devoted to the description
of the noxious practices
of all religions in all times.
For many religious Deists
the teachings of Christ were
not essentially novel but were,
in reality, as old as creation.
ENCYCLOPEDIA BRITANNICA

There is little doubt that the separation of church and state was a major theme of the American Revolution.

The resolution of the first Continental Congress issued in October 1774 listed among the "infringements and violations of the rights of the colonists" the fact that the British Parliament had established as the official state religion the "Roman Catholic religion in the province of Quebec" which, the Continental Congress claimed, had the effect of "erecting a tyranny there to the great danger . . . of the neighboring British colonies." The members of the first Continental Congress were not specifically anti-Catholic (although it's certainly true that most of them were either Protestants or Deists, and also true that Protestants and Catholics were not on the best of terms back then). The founding fathers were complaining of the "tyranny" of any state-authorized religion.

I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises . . . civil powers alone have been given to the President of the U.S. and no authority to direct the religious exercises of his constituents.
THOMAS JEFFERSON

In January 1776, Thomas Paine published Common Sense. This pamphlet, more than anything else, moved popular opinion from merely protesting against British rule to openly rebelling against it. Without Common Sense paving the way, it is doubtful that the Declaration of Independence would have been issued in July of that year—if at all. Here are some common sense ideas Thomas Paine had about the freedom of religion:

This new world hath been the asylum for the persecuted lovers of civil and religious liberty from every Part of Europe. Hither have they fled, not from the tender embraces of the mother, but from the cruelty of the monster . . .

As to religion, I hold it to be the indispensable duty of all government, to protect all conscientious professors thereof, and I know of no other business which government hath to do therewith. . . .

For myself I fully and conscientiously believe, that it is the will of the Almighty, that there should be a diversity of religious opinions among us. . . .

Paine argued that "above all things the free exercise of religion" was essential to freedom.
Declaring independence from the king of England in 1776 was the first taste of religious freedom that most Americans had. Calling the king a tyrant and breaking all ties with him may today seem a purely political move, but it was not viewed so in 1776. The king, it was believed, was the direct representative of God on earth, crowned by the highest church authority. Just as people owed God allegiance, so, too, they owed the king allegiance. Obeying the king was the same as obeying God; disobeying the king was the same as disobeying God.
When the revolutionary war was not going well, many moaned, "This is what we get for offending the king. God is not on our side." When, however, the war was won in 1781, Americans finally started believing that life without a God-anointed king was possible. They also started thinking that, perhaps, life with God but without a state-mandated religion was possible as well.

The First Amendment has erected
a wall between church and state.
That wall must be kept
high and impregnable.
We could not approve
the slightest breach.
JUSTICE HUGO BLACK

In Virginia, a state rich in religious tradition, Thomas Jefferson tried for more than a decade to have the principles of religious freedom incorporated as part of Virginia's bylaws. In January of 1786, with the help of James Madison, he finally succeeded. It was a testament not only to Jefferson's persuasive ability and persistence, but also to the gradual awakening of the American public. His Virginia Statute of Religious Liberty stands as a lighthouse of religious freedom. It would probably have as much trouble passing through any legislative body today as it did back in the late 1700s.

The Virginia Statute of Religious Liberty begins by stating that "Almighty God hath created the mind free," and any attempts to influence others in religious matters by using the force of government "tend only to beget habits of hypocrisy and meanness." Further, claimed Jefferson, laws based on religious beliefs are not just a civil injustice, but "a departure from the plan of the Holy author of our religion." After all, if God wanted to physically punish people for not obeying the precepts of a certain religion, he could, because it "was in his Almighty power to do."

Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.

Jefferson went on to point out that whenever one asks "the civil magistrate to intrude his powers into the field of opinion" and stop the spread of one thought or another "on the supposition of their ill tendency," the government is caught in "a dangerous fallacy, which at once destroys all religious liberty" because the magistrate will simply "approve or condemn the sentiments of others only as they shall square with or differ from his own."


Let us revise our views
and work from the premise
that all laws should be
for the welfare of society
as a whole and not directed
at the punishment of sins.
JOHN BIGGS, JR.

Jefferson maintains that the civil government has plenty to do; there is barely "time enough for the rightful purposes of civil government," and the government should only instruct "its officers to interfere when principles break out into overt acts against peace and good order."

Jefferson continues, stating that "truth is great and will prevail if left to herself." Truth "has nothing to fear from the conflict" unless truth, by human intervention, is "disarmed of her natural weapons, free argument and debate."

All men shall be free to profess, and by argument to maintain their opinion in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.

When our founding fathers gathered in 1787 to write a Constitution, the thirteen colonies were a crazy quilt of religious beliefs, philosophies, and practices. Eleven of the thirteen colonies had religious requirements to be met before one could serve in the state legislature. Some of the state constitutions embraced the church; others kept the church at arm's length. Some gave preference to one religious denomination, some to another. All were noticeably antisemitic.

The range of attitudes written into state constitutions and laws was quite remarkable. Massachusetts and Virginia represented two extremes.


Moral indignation:
jealousy with a halo.
H. G. WELLS
Massachusetts, inspired by the Puritans and the total intermingling of church and state, thought that church and state should not only embrace each other, but live together—after a proper marriage, of course. Here is an excerpt from its constitution, passed in 1780:

As the happiness of a people, and the good order and preservation of a civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of GOD, and of public instructions in piety, religion, and morality; Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legislature with power to authorize and require . . . the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.

Virginia, on the other hand—inspired by the works of Thomas Jefferson, James Madison, George Washington, and a truly unhappy experience with state mandated and supported religion—made a clear separation of church and state in its constitution, passed in 1776:

No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall any man be forced, restrained, molested or burdened in his body or goods, or otherwise suffer, on account of his religious opinions or belief; but all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and the same shall in no wise affect, diminish, or enlarge their civil capacities. And the legislature shall not prescribe any religious test whatever; nor confer any particular privileges or advantages on any one sect or denomination; nor pass any law requiring or authorizing any religious society, or the people of any district within this commonwealth, to levy on themselves or others any tax for the erection or repair of any house for public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and make for his support such private contract as he shall please.


The day that this country
ceases to be free for irreligion,
it will cease to be free
for religion.
JUSTICE ROBERT H. JACKSON

In some states, as it had been in Virginia, a single church was established. Others restricted public office to Protestants. Some required belief in specific doctrines of the Christian religion, such as the divinity of Jesus, the Trinity, or immortality. The constitution of North Carolina is an example:

No person who shall deny the being of God, or the truth of the Christian religion, or the divine authority of the Old or New Testament, or who shall hold religious principles incompatible with the freedom or safety of the state, shall be capable of holding any office or place of trust in the civil department within this state.

The founding fathers looked at the world beyond the thirteen colonies and they looked at history. There, church and state were so permanently, continuously, and unabashedly intermingled that the study of one automatically included the study of the other. Like television and commercials, religion and politics were, until the Constitution and its Bill of Rights, inseparable. Senator Sam J. Ervin, Jr., offers this account of two millennia of religious belief influencing government policy:


Lord, there's danger
in this land.
You get witch-hunts and wars
when church and state
hold hands.
JONI MITCHELL

The ugliest chapters in history are those that recount the religious intolerance of the civil and ecclesiastical rulers of the Old World and their puppets during the generations preceding the framing and ratifying of the First Amendment.

These chapters of history reveal the casting of the Christians to the lions in the Coliseum at Rome; the bloody Crusades of the Christians against the Saracens for the possession of the shrines hallowed by the footsteps of the Prince of Peace; the use by the papacy of the dungeon and the rack to coerce conformity and of the fiery faggot to exterminate heresy; the unspeakable cruelties of the Spanish Inquisition; the slaughter of the Waldenses in Alpine Italy; the jailing and hanging by Protestant kings of English Catholics for abiding with the faith of their fathers; the jailing and hanging by a Catholic queen of English Protestants for reading English Scriptures and praying Protestant prayers; the hunting down and slaying of the Covenanters upon the crags and moors of Scotland for worshiping God according to the dictates of their own consciences; the decimating of the people of the German states in the Thirty Years War between Catholics and Protestants; the massacre of the Huguenots in France; the pogroms and persecutions of the Jews in many lands; the banishing of Baptists and other dissenters by Puritan Massachusetts; the persecution and imprisonment of Quakers by England for refusing to pay tithes to the established church and to take the oaths of supremacy and allegiance; the banishing, branding, imprisoning, and whipping of Quakers, and the hanging of the alleged witches at Salem by Puritan Massachusetts; and the hundreds of other atrocities perpetrated in the name of religion.

It is not surprising that Blaise Pascal, the French mathematician and philosopher, was moved more than three hundred years ago to proclaim this tragic truth: "Men never do evil so completely and cheerfully as when they do it from religious conviction."


In our country are evangelists and
zealots of many different political,
economic and religious persuasions
whose fanatical conviction is that
all thought is divinely classified
into two kinds—that which is
their own and that which is false
and dangerous.
JUSTICE ROBERT H. JACKSON
And let's remember that religious intolerance involving Christians began with Christ himself, who, although put to death by Rome, was convicted of "blasphemy" by the ruling religious body of the day, the Sanhedrin.
From the pharaohs of ancient Egypt to the republics of ancient Greece and Rome, up to and including King George III and King Louis XVI, the rulers either were gods or held their positions through the direct mandate of God.
Just as we today generally think that a rich person (especially a self-made rich person) must know something that the rest of us don't, so too it was assumed that people with political power had some kind of connection to God the average person did not. God was the giver of life; God was the giver of power; and God obviously gave more power to a king than to a serf.
For every ruler whose belief in God made him or her just, compassionate, caring, and giving, there was a ruler who used the name of God to suppress, exploit, terrorize, and intimidate. Usually it is the tyrants who have their names writ large in history, but there were many rulers who genuinely believed in the more benevolent aspects of religion and sincerely (and, in some cases, successfully) administered a state with the kindness, encouragement, and fairness of a good parent.
What bothered the founding fathers about the intermingling of church and state was not that it never worked, but that it worked intermittently. Like good monarchs and bad monarchs, the good and bad were too random, too illogical, too unreasonable a system on which to base an ongoing government.

We must respect
the other fellow's religion,
but only in the sense
and to the extent that
we respect his theory
that his wife is beautiful
and his children smart.
H. L. MENCKEN

So, even if there had been a single religion happily practiced by all the citizens of the thirteen colonies (which there was not), the intermingling of church and state would still have been unacceptable because no one knew how severely future despots might distort or manipulate that religion for their own selfish use.

The solution, then, was to separate church and state, to build a "wall of separation" between them, as Jefferson wrote:

Believing with you that religion is a matter which lies solely between man and his God, I contemplate with solemn reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion or prohibiting the free exercise thereof" thus building a wall of separation between Church and State.

Although it was highly experimental and relatively untried, the concept of separation fit perfectly with the founding fathers' needs and intentions:

1. The separation of church and state allowed the founding fathers to avoid the debate on which of the many diverse—and often contradictory—religious beliefs then practiced in the thirteen colonies should be the official state religion. This debate almost certainly would have destroyed the Constitutional Convention, and the states might never have united.

2. Although the separation of church and state may not have allowed for those elevated periods of spiritual benevolence that took place when government and grace combined, it would protect against the extravagantly wasteful and downright terrifying religious-political endeavors such as the Great Crusades, the Inquisition, and the home-grown Salem witch hunts.

3. Being able to choose and practice one's own religion without government intervention, pressure, or control was completely harmonious with the concept that all rights naturally belonged to the individual, who voluntarily surrendered specific rights in exchange for the benefits and protection of government. Taking a fresh look at it, why should people give up their natural right to choose and practice a religion? And why should the government, as part of its service to the people, choose, support, and enforce by law one particular religious belief over all others? The answer to these questions leaned overwhelmingly in the direction of leaving religious freedom where God originally put it—in the hands of the individual.


Being an Episcopalian
interferes neither
with my business
nor my religion.
JOHN KENDRICK BANGS
1862

As James Madison wrote,

We hold it for a fundamental and undeniable truth, that religion, or the duty we owe our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.


We hold these truths to be sacred
and undeniable, that all men are
created equal and independent,
that from that equal creation
they derive rights inherent
and inalienable, among which are
the preservation of life, and liberty,
and the pursuit of happiness.
THOMAS JEFFERSON
First draft of the Declaration of Independence

And so the Constitution of the United States of America was written without a single mention or reference to God. If the various indicators of separation of church and state in the main body of the Constitution—discussed in the previous chapter—were not enough, the freedom from state-imposed religion and the freedom of religious practice were both guaranteed by the First Amendment. Had this not been enough, the Fourteenth Amendment made sure each state paid attention to the First Amendment.

And so there it was, and is, a shining example—clear, bright, and unambiguous—as to the religious rights retained by all citizens of the United States of America:

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

No qualifications. No excuses. No exceptions. No apologies.

The first part, "Congress shall make no law respecting an establishment of religion . . ." means that the government cannot dictate a religious belief to be practiced by all people. Further, it means that the individual beliefs of certain religions cannot be written into law simply because a number of people—even a majority of people—believe them to be so.

This application of the First Amendment is central to the discussion of consensual crimes. In listening to the reasons why laws against consensual activities are enacted, or why laws against consensual activities should not be eliminated, one begins to peel away layers, the core of which is almost invariably a religious belief. The progression often goes:

"It's not right."

"Why is it not right?"

"Because it's not moral."

"Why is it not moral?"

"Because God says so."


But how shall we educate
men to goodness,
to a sense of one another,
to a love of truth?
And more urgently,
how shall we do this
in a bad time?
DANIEL BERRIGAN

And this is usually followed by some reference—sometimes specific, but usually vague—to the Bible, a sermon, a televangelist, or a story remembered from Sunday School (or was it Cecil B. deMille?).

Knowing about that pesky separation of church and state rule (honored more in the breach, it seems, than in the observance), some politicians and commentators do their best to cloud the fact that criminalizing consensual activities is a religious issue. "The people of this country don't want this. The people of this country think it's wrong." Nine times out of ten, the people believe what they believe based on what they heard in church, through televangelism, or by simply accepting the opinion of other highly convinced people who got their opinions through church or televangelism.

Even if the first half of the First Amendment's religious guarantees were not there, the second half would be enough to permit all consensual activities:

. . . or prohibiting the free exercise thereof . . .

"Thereof" refers, of course, to religion. Congress, then, can make no law prohibiting the free exercise of religion. There go all the laws against consensual activities.

All one must do is claim that the practice of a consensual activity is a "sacrament" in one's "church" and any of the consensual crimes can then be practiced under the protection of the law. Naturally, there must be some restrictions—not harming the person or property of another comes to mind for some reason.

When it comes to civil rights, however, saying, "It's my religion; therefore I'm protected by the First Amendment," is not a sufficient argument. It's an accurate argument, and even a workable argument, but it potentially adds a layer of pretense and hypocrisy to an individual's life, freedom, and religion. One should be able to participate in consensual activities without having to explain: "I do this because it's part of my religion." One should only have to say, "I'm entitled to do this because it does not physically harm the person or property of another. I never gave the regulation of my personal life over to the government."


It is useless for the sheep
to pass resolutions
in favor of vegetarianism
while the wolf
remains of a different opinion.
WILLIAM RALPH INGE

There should be no need for prostitutes (the Rahabites) to harken back to Rahab, the prostitute whom God personally saved when Jericho fell; for gays (the Beloveds) to interpret Scripture to show that Jesus and his disciples were all lovers; for drug users (the Learyans) to say they're using chemicals for mystical and religious experiences—the wine at the last supper and the changing of water to wine at the wedding feast at Cana being just two scriptural examples; for gamblers (the Holy Rollers or Vegasites) to point out that the apostles cast lots to choose a replacement for Judas; for pornographers (the Lovelacians) to claim that God created Adam and Eve without clothing, and that we each came into this world without clothing, so lack of clothing is what God wants; and on and on.

What we have today is a contemporary Inquisition in which 4,000,000 people are arrested each year and 750,000 people are currently in prison for "crimes" that offend the sensibility of highly vocal "religious" people. This situation directly violates the separation of church and state and the religious freedoms guaranteed by United States Constitution.

The people who want to maintain laws based on their religious beliefs are taking their constitutionally guaranteed right of religious freedom too far—they are physically harming the persons and property of others and using the peace officers of this country to enforce their excessive exercise of a sacred constitutional right.


One day I sat thinking,
almost in despair;
a hand fell on my shoulder
and a voice said reassuringly:
"Cheer up, things could get worse."
So I cheered up and, sure enough,
things got worse.
JAMES HAGGERTY

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