Theocracy Watch XI: A Dark Day for Separation

I’m sorry to report some bad news for allies of church-state separation everywhere. Back in February, I wrote about a momentous case before the U.S. Supreme Court, in which the Freedom from Religion Foundation argued that George W. Bush should not have the right to unilaterally use money appropriated by Congress to fund religious organizations. That case, Hein v. FFRF, has been decided, with the court ruling 5-4 in the administration’s favor. This is a sad outcome, though not terribly shocking, given Bush’s two new appointees to the court. Had Justice Sandra Day O’Connor not resigned, to be replaced by Samuel Alito, the outcome might well have been different. I have long wondered what O’Connor was thinking when she resigned – she must have known that she would be replaced by a far more reactionary justice.

Strictly speaking, the court did not rule that Bush’s faith-based initiative is constitutional. Hein was not about whether such programs are legal, but a more technical issue: whether taxpayers have standing to sue when the executive branch uses their tax money to promote religion. A 1968 precedent, Flast v. Cohen, held that taxpayers have automatic standing when their tax payments are used to fund religion by an act of Congress. The Supreme Court refused to apply that same principle to the executive branch, which leads to a bizarre conclusion: it could well be the case that the president is doing something unconstitutional, yet no one has any power to force him to stop.

This decision poses a great threat to church-state separation. Although it is still completely unconstitutional for Congress to allocate tax funds to support and promote religion (the one bright spot in this decision is that Flast itself was not overturned, as some amicus briefs in the case had urged), the door is now open for Congress to allocate general funds for the president to use in the very same ways that Congress itself could not legally do. Anything, up to and including building churches and hiring ministers with government money, would seem to be within the power of the executive. This is a worrying boost to the theory of the “imperial presidency” championed by George W. Bush and his administration, which holds that the president is equivalent to a king with the unilateral power to enact his will into law by fiat without being subject to any checks, balances or oversight. No breaches of the church-state wall so flagrant have been committed yet (though the ones that have already occurred are bad enough), but only time will tell what the ramifications of this decision will be. (Read FFRF’s press release on the case.) America’s founders, who made their opposition to religious establishments exceedingly clear, would without any doubt have been amazed and horrified by the claim that they intended to imbue any member of government with such monarchical power.

This battle is not over. Despite the gaping loophole which this court has carved in the First Amendment, Congress still holds the power of the purse – the president cannot spend money which he does not have. And we now have a Democratic Congress, thank goodness, one which will be far more willing to listen to voices raised on behalf of the Constitution. For friends of church-state separation in America, the next move is to contact your senators and representatives and ask that Congress cut off the general allocations that have been used to create the faith-based initiative. Given George Bush’s clear disregard for the Constitution, any money given him in the future must come with a strong disclaimer attached stating that it may not be used to promote religion.

Though the church-state wall has been dealt a setback, friends of liberty can take solace in the idea that ours is a long fight. It is not as if we have lost our way and are on a steady slide toward theocracy (though some recent events might understandably give people the wrong impression). On the contrary, would-be theocrats have been trying to get around the Constitution since it was first written, with varying degrees of success. If we trace the history of this country, in the long term they are losing ground, rather than gaining it. It was only a little over a hundred years ago that Americans were still being prosecuted for blasphemy!

The Supreme Court’s new rightward tilt is likely to last for at least a decade, even if a Democrat wins the next presidential election. Therefore, it’s essential that people of principle come together to form a new, revitalized progressive movement. The tools and principles we need are still within our reach, if only we wield them effectively. There are encouraging signs that this is already happening, but much work still remains to be done. Most of all, we nonbelievers need to use this decision as a rallying cry in defense of the First Amendment. The FFRF has already seen a surge in membership as a result of the publicity from this case. If you’re not already a member, there’s no better time to join and lend your voice to the fight against theocracy in the last bastion of religious fundamentalism left in the Western world.

Other posts in this series:

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • http://www.nullifidian.net/ nullifidian

    The US political and justice systems seem to be increasing fudging the little guy, the person who most needs to be protected by same. I suppose it’s some solace that this case was only about standing (which I’d never hear of until the FFRF podcast) rather than about C/S itself.

    Oh, and I know that this isn’t on topic, and apologies if you’ve already been tagged.

  • http://merryandrew.net Andy

    I agree with your take on the decision, but have to part ways with you when you say:

    “And we now have a Democratic Congress, thank goodness, one which will be far more willing to listen to voices raised on behalf of the Constitution.”

    I’m quite cynical and feel that the Democrats are only politicians, after all, and will stand up for the Constitution only as long as it helps them thwart a Republican president. Let’s not forget that only last month all the Democrat presidential candidates were falling all over themselves to claim the title of most religious Democrat candidate, and probably will continue to do so until the election is over.

    It is also worth noting that Bill Clinton is heavily involved with Jimmy Carter’s Cooperative Baptist Fellowship movement, which is aiming, among other things, to unite Baptists worldwide. If Hillary Clinton were to win the presidency and then throw any kind of special favors in that direction, I sincerely doubt the Democrat Congress would do anything to stop it.

  • http://uncrediblehallq.blogspot.com/ Chris Hallquist

    You’ve been tagged by a blog meme.

  • Siamang

    Andy, the name is the Democratic Party. …Democratic candidate….Democratic Congress.

    Calling it the “Democrat Congress” you sound like a right-wing parrot spewing focus-grouped sound bytes.

    If you’re not a right-wing parrot, I apologize. But if you came in here disguised as a moderate, you just blew your cover.

  • Ric

    This is indeed terrible news. The damage that Bush has done to the USA will far outlast his term, alas.

  • Jeff T.

    I was watching the politics of Ann Coulter last night. I use the word politics very lightly in this case. Ann was the author of the book about godless liberals—as if that were a bad thing. She seems to be a champion of the right wing conservative church branch of our current theocratic grand ole party.

    I find the open hypocrisy of people espousing religion who then turn around and state openly that ‘they wish someone had been killed by a terrorist’ to be rather insulting to my meager intelligence. This is what Ann Coulter really said, and it is what American ‘politics’ has become today.

    I think the theocracy is already in full throttle and we just don’t know it yet. Obviously it is a hypocritical theocracy which uses religious sugarcoating to satiate the masses while it pursues its own very secular agendas.

  • Jeff T.

    I was watching the politics of Ann Coulter last night. I use the word politics very lightly in this case. Ann was the author of the book about godless liberals—as if that were a bad thing. She seems to be a champion of the right wing conservative church branch of our current theocratic grand ole party.

    I find the open hypocrisy of people espousing religion who then turn around and state openly that ‘they wish someone had been killed by a terrorist’ to be rather insulting to my meager intelligence. This is what Ann Coulter really said, and it is what American ‘politics’ has become today.

    I think the theocracy is already in full throttle and we just don’t know it yet. Obviously it is a hypocritical theocracy which uses religious sugarcoating to satiate the masses while it pursues its own very secular agendas.

  • stillwaters

    A few years ago when I became so concerned with all the religiosity getting entwined with politics and the government, I started searching for some atheist organizations. I had remembered something about a Freedom from Religion organization, and after googling, ran smack into the Freedom From Religion Foundation. I liked what they were saying and doing, but did not join. Instead, I joined the American Atheists.

    After a year of that, I did not renew my membership. The AA was still too divisive for my tastes. I ended up joining the American Humanist Association and the Center For Inquiry, as well as the ACLU.

    But now, with this court case, I decided that the Freedom From Religion Foundation is an organization that I should have joined when I first discovered them. They are truly an organization fighting to keep our (atheists) rights. The Freedom From Religion Foundation is a great cause. Please join today if you want to keep what rights you have. Only together can we make progress.

    PS. They have an outstanding podcast as well.

  • stillwaters

    A few years ago when I became so concerned with all the religiosity getting entwined with politics and the government, I started searching for some atheist organizations. I had remembered something about a Freedom from Religion organization, and after googling, ran smack into the Freedom From Religion Foundation. I liked what they were saying and doing, but did not join. Instead, I joined the American Atheists.

    After a year of that, I did not renew my membership. The AA was still too divisive for my tastes. I ended up joining the American Humanist Association and the Center For Inquiry, as well as the ACLU.

    But now, with this court case, I decided that the Freedom From Religion Foundation is an organization that I should have joined when I first discovered them. They are truly an organization fighting to keep our (atheists) rights. The Freedom From Religion Foundation is a great cause. Please join today if you want to keep what rights you have. Only together can we make progress.

    PS. They have an outstanding podcast as well.

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    Stillwaters: Amen. :) Freethought Radio is a fantastic show which I listen to every week. The ACLU and other groups are also very good when it comes to defending civil liberties, but for a specifically atheist perspective on civil rights, I think the FFRF is the best we could ask for. Dan and Annie Laurie are doing an amazing job and they all deserve our support.

    For Andy:

    Let’s not forget that only last month all the Democrat presidential candidates were falling all over themselves to claim the title of most religious Democrat candidate, and probably will continue to do so until the election is over.

    While I also feel distaste upon seeing Democratic politicians pander to the religious section of the public, it doesn’t follow that their views on separation are as bad as the Republicans’. Whether we like it or not, pandering to religiosity is a wise electoral tactic, at least for now. If the candidate actually understands the First Amendment and why it’s important, as the Democrats seem to, then I’ll endure some shallow god-talk rather than see a genuine theocrat put in power. If Congress doesn’t understand the necessity of safeguarding the Constitution, it’s up to us to remind them and vote for progressive members who will do the right thing.

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    Stillwaters: Amen. :) Freethought Radio is a fantastic show which I listen to every week. The ACLU and other groups are also very good when it comes to defending civil liberties, but for a specifically atheist perspective on civil rights, I think the FFRF is the best we could ask for. Dan and Annie Laurie are doing an amazing job and they all deserve our support.

    For Andy:

    Let’s not forget that only last month all the Democrat presidential candidates were falling all over themselves to claim the title of most religious Democrat candidate, and probably will continue to do so until the election is over.

    While I also feel distaste upon seeing Democratic politicians pander to the religious section of the public, it doesn’t follow that their views on separation are as bad as the Republicans’. Whether we like it or not, pandering to religiosity is a wise electoral tactic, at least for now. If the candidate actually understands the First Amendment and why it’s important, as the Democrats seem to, then I’ll endure some shallow god-talk rather than see a genuine theocrat put in power. If Congress doesn’t understand the necessity of safeguarding the Constitution, it’s up to us to remind them and vote for progressive members who will do the right thing.

  • http://merryandrew.net Andy

    @ Siamang: My apologies. I can only plead lack of coffee and being more engrossed in the issue than careful about what I was typing. But I will say that as far as I’m aware, I’m not moderate on anything and wouldn’t pretend to be. I do love it when people pay attention to semantics, though. There’s hope for us all in that.

    @Ebonmuse:

    If Congress doesn’t understand the necessity of safeguarding the Constitution, it’s up to us to remind them and vote for progressive members who will do the right thing.

    Absolutely. I’m just saying that even if we elect progressive politicians, we will still have to be vigilant, because Democratic control of 2/3 of the government, in and of itself, doesn’t absolutely ensure freedom from religion.