The First Amendment: An Icon Sometimes Erected in Curious Places
Published on: December 12, 2012
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  • eric

    Saying UCSD is not located in San Diego but in La Jolla is like saying Central Park is not in New York but in Manhatten.

  • Gary Novak

    “The ‘rule of law’ . . . is nothing sacred. Rather, it is the regrettable consequence of the profane proclivities of our species . . ..” Even in a liberal democracy, where “there is a reasonable chance that the law will have some resemblance with one might call justice,” the provisions of the law will “grind against each other,” as in the First Amendment, which prohibits the establishment of religion but also protects its free exercise.

    As a bulwark against “murderous chaos,” the law deserves grudging respect, but Berger’s larger point is that the tensions, conundrums, antinomies, and other curiosities of the law cannot be eliminated by constitutional, legislative, or judicial reform. Precisely because the rule of law, as such, is not sacred, it is incapable of generating perfect justice. You want justice? Try faith, hope, and charity. The law is a modus vivendi, a way of making do in the absence of the kingdom of heaven. If Berger seems frustratingly insouciant in not weighing in more forcefully on the legal issues, that is because it is “ungrammatical” to get steamed up over curiosities. It is more important that we should see these issues AS curiosities than that we should resolve them.

    Berger closes by asking if progressives who are offended by the exclusion of a gay-marriage advocate from USD would be equally aroused by the exclusion from UCSD of a speaker who believes that homosexuality is sinful. I’ll stick my neck out and answer that progressives at the university that housed Herbert (“repressive tolerance”) Marcuse for many years (UCSD) would know instinctively that banning speakers on the “right side of history” is bad and that banning “hate” speakers on the wrong side of history is good. And there is zero chance that they would see anything curious in that situation.

  • Wayne Lusvardi

    Maybe all those Santa Monica protestors against nativity scenes in public parks should be reminded of a little history. In first century Rome Christians were persecuted by the state not for being Jews (which most were in that era) but for being ATHEISTS, meaning not for worshiping the other pagan gods.

    And lest we forget, if Jews became Christians in ancient Rome they became exempt from the special tribute – i.e., tax – that was imposed on Jews. But by not paying the tax Christians were prosecuted for boycotting pagan cults. Jews, on the other hand, were granted vectigalis libertas – loosely translated as the oxymoron: “liberty tribute” or “freedom that brings in revenue [to the state].”

    I can imagine that in ultra-left Santa Monica some of the same issues prevail. If it is still true that Christians even in pagan Santa Monica are opposed to many taxes then those who want taxes may also want Christian displays removed from the public square and want Christianity marginalized. The media never seems to tell us who fronts all the costs for 16 atheist booths in Santa Monica? And who has such time on their hands to undertake fighting Christian nativity displays? As Berger might say: every worldview has a social location. I wouldn’t be surprised if the atheist protestors are also new recruits — i.e., converts — to the 1.2 million people added to the SSI benefit rolls and feel threatened by any organization outside the state that might not legitimate their entitlements.

    My guess is that in California any organization, religious or secular, that doesn’t bring tribute to the state would be similarly sued and persecuted. It is sort of interesting that in all the cases cited above by Dr. Berger that such conflicts occurred at state institutions and when Christians dared to venture out of the margins into the public square.

    Another history lesson might help in understanding the conflict of free religious expression. It is written in the Christian gospel of Luke 23:2:

    “Then the whole assembly rose and led him off to Pilate. And they began to accuse him, saying, ‘We should have found this man subverting our state. He opposes payment of taxes to Caesar and claims to be the Messiah, a king.”

    Pilate apparently dismissed the former charge of tax evasion, although the latter charge of not paying tribute to state pagan religions was sustained.

    In the gospel of Matthew 18:15 Jesus went further and said if someone sins against another person and refuses to listen to your charges you “should treat them as you would a pagan or a tax collector.”

    The issues of so-called separation of religion and state and free religious speech are wrapped up in the issue of taxation just as much today as in first century Rome and Jerusalem.

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  • Wayne Lusvardi

    A friend proposed the following scenario after I read Dr. Berger’s above column to he and his wife:

    Suppose that an ecumenical council of Christian churches agreed that here forth that they were going to celebrate Christmas with fireworks displays. Plausibly the fireworks would symbolize the Christmas star of Bethlehem.

    Then antagonists could not so easily go to courts to ban aerial fireworks. That is because then that would mean that July 4th fireworks in public parks, fireworks shot into the sky over public bodies of water (“the waters of the U.S.”), or in other public venues would also have to also be banned.

    This would be the reverse of the above-describe anti-Feast of San Genarro celebration fantasy. Should Christians use some of the same shrewd tactics as their antagonists? A famous prophet said to be “wise as serpents and innocent as doves.”

  • Wim

    I’ve been trying to figure out why Dr. Berger strays into this kind of silliness: “Let it be stipulated . . . that in the United States I have the right to preach with intent to convert. But do I have the right to do so anywhere at all? On a public street, or also in a building in which putative convertees are worshiping?” Even people who admit they are not legal scholars — a category which includes Dr Berger AND myself — should know that the First Amendment applies to Government activities and Government property ONLY. Forcing a private institution of religion to admit missionaries of a conflicting faith would violate the very essence of the Amendment.

    Berger also claims that “. . . the US has an unusually strict separation of religion and the state, dwarfing France’s laicite . . .” In truth, across the world the separation of Church and State is practiced in ways that vary with legal stanards, tradition, history and politics, and the French may well hold that their way is more strict than ours. For one piece of evidence, France (and other European countries) could point out that the their government does not recognize religion-based marriages AT ALL. People who want to get married in a church are free to do so, but they must still go through a secular ceremony at City Hall to be recognized as man and wife.

  • The “no establishment” and “no hindrance in free expression” have too often morphed into profile standards of what to do when one’s own ox gets gored by those of a different identity (viewed as on the wrong side of history).

    I’m intriqued by Lusvardi’s question of who “fronts all the costs for 16 atheist booths” as well as his question as to how many of those supporting the atheist booths are “new recruits — i.e., converts — to the 1.2 million people added to the SSI benefit rolls,” as well as Berger’s report on the Atheists, Humanists and Agnostics (AHA) applying for and getting funding. It is the same dynamic as gay rights advocates of the 1970’s opposed to gay marriage to their now being in favor because, as one leading gay marriage advocate has said, for over 1,400 reasons, all in the tax code (including inheritance rights as well as hospital visitation rights).

    Which makes me curious about what will be the social science version of Newton’s second law, reactions that create unintended consequences and a whole host of “reciprocal causations of reality” in light of actions taken for or against religious liberty exercised in free speech.

    Novak notes the needed Thomas a Kempis like advice: “faith, hope and charity” (the latter meaning love or compassion), and not the passive “Genero fantasy” on one end or, on the other end, the violence/vandalizing actions against that which offends, neither being the “imitation of Christ:” forgiving good neighbors.

    Even more curious will be to what degree progressives will be aroused to confront the growing determination of certain practitioners of Islam to not only be ruled by sharia law, but who sue to be able to practice their fundamentals, including the suppression of women’s rights and outlawing gay rights in their communities. In other words, how will progressives react when they seek sovereignty over these “sacred” identity planks of progressives? If allowed, women’s rights and gay rights would be morphed from being fundamental to being relative.

    Recognzing the base of the “human condition” (imperfect), Berger advocates seeking middle positions between the extreme views held by those with fundamentalist and relativist approaches (whether religious or political).

    We “know” (have faith in) whose state of grace will eventually prevail. The question becomes how do we get there using the calculi of meaning and pain to engage a contestation of the opposing ideas about how to do so? And will we remember (1) that the greatest defense against losing our political and economic freedoms is the first amendment granting of freedom of speech and freedom of religion, and (2) that our full appreciation of these is best demonstrated by being loving neighbors, not antagonistic ones?

  • Wayne Lusvardi

    One has to understand California political culture to “divine” what is behind the atheists in Santa Monica (led by a person who resides in the City of Burbank).

    When the Occupy Movement mobilized for months in front of the Los Angeles City Hall, it was all funded and supported by public unions. They destroyed a public park that had to be totally renovated at public expense.

    When a person ran successfully for mayor of a California city, a local union bought the for sale house next to his and began harassing his every move and making the mayor miserable unless he voted for unrealistic pensions.

    The unions control every Democratic Party member in the state legislature.

    My guess is that the unions do not want any organization in the public square in California other than themselves. I am not sure Rev. Richard John Neuhaus foresaw in his book The Public Square and other writings that a threat to religious free speech would come from public employee unions.

  • Wayne Lusvardi

    A check of public property records online indicates the atheist leader, Damon Vix, owns a home in co-owneship with Lori Greengold, the principal of a local public school and presumably a member of the California Teacher’s Association union.

  • Don

    Hobbes redux! You go Peter Berger!

    ” The “rule of law”, often evoked with breathless awe, is nothing sacred. Rather, it is the regrettable consequence of the profane proclivities of our species, which would quickly lead to murderous chaos unless reined in by coercive regulations. “

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  • “I don’t know what branch of Christianity the missionaries belong to (three of the four have Arabic names, but of course they might be Evangelical Protestants—the usual suspects when it comes to aggressive proselytism).”

    I appreciate very much your writing and contributions and am disappointed with the above in my view gratuitous comment.

    This stereotype and generalised statement is unhelpful and particularly at an intellectual level. The term “evangelical” offers a spectrum of beliefs that is very wide, “protestant” includes an enormous number of different groups. Once we know whom you are talking about we could perhaps comment further as to the veracity of your statement in that context. In the meantime, maybe your comment could be construed as an aggressive form of proselytism, the proselytism of your cause? And then there is the compare and contrast and on and on. Whilst not totally on point and certainly not meant as a personal attack on you I would refer you to this quote by Paul Johnson as an antidote for such statements which can come back to haunt us.

    “The study of history is a powerful antidote to contemporary arrogance. It is humbling to discover how many of our glib assumptions, which seem to us novel and plausible, have been tested before, not once but many times and in innumerable guises; and discovered to be, at great human cost, wholly false.”

    Paul Johnson, The Quotable Paul Johnson: A Topical Compilation of His Wit, Wisdom and Satire, edited by George J. Marlin, et al (New York: Farrar, Straus and Giroux, 1994), p. 138.

  • ltlee

    It is unfortunate that most Americans do not understand the separation of Church and State. Strict separation of church and state requires the government to take the stand of an agnostic. If god can be proven to be exist, then the government should be theocratic to assure good governance. If god can be proven not to exist, then all religious organizations are based on lies. The government should shut down all of them. The government not acting as agnostics is the source of all the troubles regarding the separation of church and state.

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