Thursday, 28 September 2017

Judge Moore and separation of church and state in the USA

Judge Moore, the Trumpian who defeated the mainstream Republican candidate to be the party candidate in Alabama for the US Senate, sounds rather appealing, in a homespun Southern Protestant way, at least compared to the dreary mainstream Republicans whom he defeated. I can't stand them. Democrats hate him because he engraved the Ten Commandments in granite and tried to place them in the Alabaman Supreme Court.

This is contrary to the separation of church and state in America, you say? Actually not. The US Constitution does not separate church and state. It says

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
It says nothing about states' right to do so.

Massachusetts was the last American state to retain an established religion, which it did until 1833. Connecticut had separated church and state in 1818 and New Hampshire in 1819. 

Justice Joseph Story of the United States Supreme Court in the 1840s was a devout Unitarian (and therefore not a Christian) who came from Massachusetts and argued that the old maxim of Blackstone's that 'Christianity is parcel of the laws of England' was Common Law and part therefore of US law. He also said that blasphemy was an offence in the USA under Common Law.

The 14th Amendment changed things by giving the Federal Government the power to act to force states to comply with the Bill of Rights, something not intended by the Founding fathers.  
"No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
But nevertheless the First Amendment does not enact a separation of church and state. It merely prevents an establishment of religion, which on the face of it means an established church. Ilana Mercer discusses this here. I suppose your view depends on what you think of States' Rights. I'd, if I were an American, be strongly in favour of any restriction on the power of federal government. Judge Moore is.

The BBC is shocked that the judge has said Islam is a 'false religion', homosexual acts abhorrent and immoral and violent crimes such as murder and rape are "happening because we have forgotten God". It sounds like the sort of things bishops say - or, at least, said until recently. "God is the only source of our law, liberty and government," he said last week, horrifying many. Oh dear, oh dear. 


  1. 14th Amendment and subsequent case law achieves the current result, perhaps controversially.

    1. You are right. I extended my post to cover this.

  2. In 1797, the United States Senate ratified a treaty with Tripoli that stated in Article 11:
    "As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries."

  3. They neglected to add: " bans notwithstanding..."

    1. I remember standing beside Lord Whitelaw in the House of Lords looking at the telex machine announce the US bombing of Tripoli in 1986. Telex machine save the mark!

  4. As someone who is married to an American, and who has therefore got to know many Americans, I think that the separation of church and state is a bad idea. It has meant that many American children do not learn even the most basic knowledge about other religions. Personally I am not religious and feel that religions are often the cause of so much violence in the world, but knowledge and understanding of the different faiths is helpful, and criticism is to be encouraged, not banned.