Those who want "In God We Trust" on coins and bills, spending of public monies to erect creches and other religious symbols, etc. argue that the First Amendment only precludes government aiding one denomination against another. This, they say, implicitly does not bar government promoting religious belief in general against non-believers.

If that argument were historically accurate (it is not!) consider some of its further policy implications: It might (or might not) allow the state to expend public funds in supporting Catholic and other parochial schools. But what the state definitely could do under the theory that it can support religion in general, is make all children attend public schools where they would be systematically inculcated to believe in God. There might be an exemption for parents who want to send their children to Catholic or other schools run by specific religions. But there would be none for atheists; they could be required to send their children to religious or public schools to be taught that what their parents believe are lies.

Which brings me to the next question. Today there are millions of Muslims, Hindus, Buddhists, Sikhs and Jews in our population. But we are and always have been a Christian nation. Though many of the Founders rejected Christianity, if not all religion, the overwhelming majority of late 18th Century Americans were Christians. Christianity is, of course, not a particular church or denomination but a religion in general. If separation of church and state means only that government cannot aid one particular denomination or church against others, why does that not leave government free to aid Christianity in general, e.g., to force parents of Muslim, Hindu and other beliefs to send their children to schools in which the children are taught that their parents' religion is a lie and that Christianity is the only truth?

Those who claim government is free to support religion in general often talk about George Washington issuing a Thanksgiving proclamation and similar historical examples (which I shall discuss later). What they don't mention is that when public schools were founded in many states in the early or mid-19th Century the curriculum often featured Bible reading. That is to say reading of the King James version of the Bible! Catholic and Jewish children whose religions use different versions of the Bible were whipped until they submitted.

Moreover we are not just historically a Christian nation. We are historically, and even today, an overwhelmingly Protestant nation. So why cannot Catholics and Jews be required to send their children to public schools in which they will be inculcated in the general elements of Protestant faith? A fortiori, they and Hindus, Muslims, Sikhs, Buddhists, (Mormons, Christian Scientists???) etc. can be required to send their children to public schools in which they will be taught that their parents' beliefs are all lies. And of course, if separation of church and state means only that the state cannot aid one particular denomination or church against others, the state is free to fund Christian or Protestant parochial schools while denying such support to schools teaching Islam, Hinduism, Catholicism, Judaism, etc.

Let us now take the next step: In addition to separation of church and state the First Amendment guarantees freedom of religion, speech, press and assembly. If the historical fact that most 18^th Century Americans believed in God means that separation of church and state nevertheless allows government support of religion against unbelief, why does it not follow that freedom of religion, speech, press and assembly give no protection to expressions of disbelief in God? Why can government not aid religion in general against disbelief by prohibiting all writing and speaking that denies the existence of God (or even that might be considered to have a tendency to call that existence into question) and prohibit non-believers from holding meetings; indeed, why cannot the state enact that all atheists be put to death as Islamic law requires for unbelievers, Hindus, Buddhists, etc?

I anticipate scoffers replying that, whatever may have occurred 150 years ago, Christians today do not advocate persecuting anyone. But constitutions are not made, and should not be interpreted, based on the facts today rather than what they may be in 50 or 100 or 150 more years. 100 years ago it was unthinkable that by the 1940s Germany, home of literature, culture, tolerance and philosophy, would begin a campaign that killed 6 million Jews plus hundreds of thousands of Gypsies and gays. [See discussion in Daniel D. Polsby & Don B. Kates, "Of Holocausts and Gun Control", 75 WASHINGTON U. L. Q. 1237 (1998).]

Likewise, 50 years ago it was unthinkable that every month in France would see hundreds of synagogue burnings, desecrations of Jewish cemeteries and attacks on individual Jews and Jewish businesses. But that is exactly what has occurred month after month in France for the past two or three years. These attacks are promoted when the authorities fail to catch more than a tiny few of the perpetrators and none of those caught are seriously punished. And then there is the not coincidental fact that not one French politician will denounce this systematic campaign of anti-Jewish violence and destruction for fear of offending the six million strong Muslim minority in French politics – the people who are carrying out the attacks. [See Christopher Caldwell, "Why Le Pen is the least of France's Problems," WEEKLY STANDARD, Vol. 7, Issue 33 (05/06/2002).] (The one suggestion that has been made is increased gun control which will, of course, assure that the Jews whom the authorities will not protect will be unable to protect themselves.)

Imagine the consequences if religious persecutors were able to call the state to their aid. Actually you do not have to imagine anything. Just remember that half a million Israelis are Jews who until 1948-51 lived in Egypt, Syria, Iraq, and other Muslim nations as their ancestors had done for 2000 or more years. But in 1948-51 thousands of Jews were murdered in those nations and the rest were expelled and their property expropriated to the state. For instance, in 1948 over 150,000 Jews lived in Iraq. Today there are exactly 21 and they have neither synagogue nor rabbi.

Christians should sit up and take notice. When Al Qaeda recently called for the extermination of all Jews everywhere in the world, what it actually called for was the extermination of all Jews AND Christians. Nor is this Al Qaeda policy alone. All Palestinian groups call for the extermination of the Israelis. ("Drive the Jews into the sea" is not a poetic metaphor.) And, of course, 9/11 was an event joyously celebrated by Muslims world-wide, most definitely including American Muslims (though they did so as discretely as possible).

Christians should consider that there are already as many as five million Muslims in the U.S. and their population is rapidly growing, and growing much more rapidly than the Christian population. (Likewise, 50 years ago Muslims were a tiny minority in France.) While it would take more than a century for Muslims to be a majority in the nation as a whole, there are many areas where they will represent a majority or very powerful minority with great influence on politicians, especially insofar as Muslims are willing to enter into temporary alliance w/ other groups, e.g., the Black Muslims.

There is no proof that most Muslims in the U.S. seek the physical extermination of all Christians or even just all Jews. But consider what they, or at least Muslim leaders in the U.S. do endorse. Though it is little known to Christians and the rest of our general population -- because the discourse is carried on in Arabic publications -- "Islamicization" is the goal tirelessly pursued by Islamic activists in the U.S. [See generally Daniel Pipes' "The Danger Within: Militant Islam in America" Nov., 2001 COMMENTARY.] "Islamicization" includes substituting Islamic law for separation of church and state and the other rights currently recognized in our Constitution. Constitutional amendments (and-or "reinterpretation" a la the judicial reinterpretations that have transformed our Constitution over the past half century) would replace freedom of religion with the Islamic legal system under which Christians and Jews would be forbidden to preach in public or to have churches. Their worship would be strictly limited to meetings in private homes and proselytization would be prohibited. The Eighth Amendment's prohibition of cruel and unusual punishment would be replaced with torture, dismemberment and other Islamic punishments. Gays, female adulterers (but not male) and atheists, agnostics, Hindus and Buddhists would be subject to execution wherever they were detected. (As to Gays it might be sufficient just to castrate them, albeit that is less than Islamic law requires.) Clitorectomy would be allowed or encouraged for all female children. The equal protection clause would be amended so as not to protect women or non-Muslims from discrimination, etc., etc.

Of course this is all unthinkable NOW. But Muslim activists are thinking for the future. Maybe Bill O’Reilly and all the other Christians who seek to dilute or destroy our constitutional scheme of separation of church and state should think a little about the future. Instead of just unthinkingly assuming you will always be in the majority, think about a possible Moslem future. How will you like it when YOUR children are required to attend Moslem-dominated schools where they are pressured or required to pledge allegiance to "one nation under Allah?" How will you like it when they are pressured or forced to pray to Allah in the (supposedly) public schools and before football games and other public events?

Consider that in the year 600 the entirety or North Africa, and the Middle East from Arabia to Persia (Iran) was Christian, Zoroastrian or pagan. By the year 700 that entire area was converted to Islam by conquest, murder and other persecution and a system in which (as required by Islamic law) extraordinary taxes were imposed on non-believers.

+++++++++++++

Having examined the implications of the claim that government may aid religion in general, let me now present the argument in reverse (which happens to be historically correct): Bill O’Reilly claims Christians are being deprived of their "rights" when the courts declare that taxes, including those paid by unbelievers may not be devoted to erecting symbols and expressions of belief – "In God We Trust" on coins and bills, creches and other Christian symbols? But Jefferson took an opposite view of rights, considering it "sinful and tyrannical, to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves"  So, "no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever"  (an enactment he proposed in Virginia).  Likewise, Madison's soaring Memorial and Remonstrance against Virginia taxation to support the Episcopal Church  asserted that a person should not be taxed even three pence to support religious views he disbelieves. And Franklin asserted that if a church is good God will it support it as will its believers. So if a church instead requires support from the state it should be presumed to be bad, not good.

Before enacting the Bill of Rights Congress considered three different proposed amendments that would clearly have allowed aid to religion in general, prohibiting only government promotion of particular denominations. All were rejected! Douglas Laycock, "'Nonpreferential' Aid to Religion: A False Claim About Original Intent," 27 WM & M L Rev 875 (1986). 

Admittedly the historical record is fraught with questions and problems. Washington issued a proclamation on Thanksgiving; Jefferson refused to do so. Madison issued such a proclamation while President, but later regretted it. As a Congressman Madison voted to have congressional chaplains but later regretted his vote.

++++++++++++++++++++++++++++++++

SOME CAVEATS

The foregoing was prompted by an email I received from an old friend, as well as hearing O’Reilly’s and his co-religionists’ complaints about their "rights" somehow being compromised by not being able to devote tax monies (paid in part by unbelievers) to the support of their views. Now, however, I want to state a couple of caveats. Though a lifelong member of the ACLU, I fully concur with a point my friend raised: "Doesn't the ACLU have more important things to do?" It seems to me that many of these controversies about prayer before football games, creches at Xmas, etc. are much ado about nothing.

Furthermore I think Christians have legitimate church-state separation complaints of their own, as to which I take the liberty of incorporating a discussion I wrote a couple of years ago:

The "one nation" flap is so trivial it is a virtually complete phoney. The clergyman who wrote the Pledge of Allegiance in the 1890s saw no need to include "under God" in it. The phrase simply does not fit. To see this, substitute the atheistical alternative: one nation, not under God, with liberty and justice for all. Neither phrase belongs there for neither one tracks or blends with the thoughts being expressed.

The only reason for intruding "under God" where it obviously does not fit is religious imperialism, an attempt to brand unbelief un-American and force unbelievers to publicly eschew their views as a condition of affirming their allegiance. The fact that atheist children are in many schools actually required to publicly eschew their parents' views by reciting the Pledge underlines how truly un-American it is to intrude "under God" into the Pledge.

At the same time, religious believers have a different and legitimate general grievance. All too often those opposing public school religious observances as violating "separation of church and state" hypocritically support school policies contrary to religious belief. For instance, while public schools should oppose violence against gays, that opposition may not involve denying the traditional Judeo-Christian-Muslim condemnation of homosexuality -- much less may schools oppose the traditional religious views and then refuse to allow peaceable, non-provocative student replies expressing those views. [This refers to an instance in which a  high school sponsored a symposium by gay advocates but refused permission to a student who wished to advocate the traditional Christian view that homosexual acts are abhorrent to God. A federal court upheld her suit against the school district for deprivation of her constitutional rights.]

The reason violence against gays is wrong is that physical force may rightly be used only for defense, not against people because of their sexual orientation or beliefs. That is what schools should be teaching, not "acceptance of the gay life style."

It is likewise wrong that sex education is often carried out in ways that promote non-marital sex contrary to the traditional religious view. Or for federal funds and advantages to be denied to Catholic hospitals if they refuse to perform abortions (at least in areas where other abortion providers exist).

[Anent the last two paragraphs, let me stress that I am here advocating freedom for religious points of view which I definitely do not share. Indeed, I think the traditional Jewish-Christian- Muslim view of gays is a loathsome bigotry. But separation of church and state precludes the schools from propagandizing against religious belief no less than it prevents propaganda in favor of religion.]

++++++++++++++++++++++++++++++

Attached hereto is a refutation of my CHURCH, STATE & ERROR bulletin. It was written in response to my bulletin by my old friend and sometime co-author Clayton Cramer who is a splendid and meticulous historian. I should point out that the position he takes -- that government may aid religion against unbelief – is shared by at least two impressive authorities on constitutional law of my acquaintance, Profs. Akhil Amar (Yale Law) and Nelson Lund (George Mason Law).

Having said that, let me respond to Clayton's refutation:

1) I am one of those neanderthals (Clayton is another) who deem original intent decisive. Since Clayton raises it as a desideratum of the establishment clause's intent, let us consider the question of a religious requirement for office. By that I mean the religious test in our federal Constitution, not those in state constitutions written 15-20 years before. Unlike them, the federal clause prohibits any religious requirement. So it makes atheists and agnostics eligible for federal employment and holding federal offices. Thus insofar as the issue of religious tests is relevant at all, here is its relevance: The framers of the Constitution may be assumed to have known that various state constitutions forbade atheists and agnostics from holding political offices, and some went further in requiring that the proposed office holder was a Christian, etc. But instead of following that pattern the federal Constitution departed from it to utterly forbid excluding atheists from holding office or employment under the federal government. This surely does not support the notion that they would go on to write a separation of church and state provision that gave government the power to discriminate against atheists and other religious dissenters.

2) Yes, at the time when Washington, D.C. was being built religious services were held in public buildings. This is not dissimilar to the provision of chaplains in the military: If you are going to send military or naval units to remote places where their religion and churches do not exist, it does not offend separation of church and state to provide them with special access to religious services. A fortiori, at a time when D.C. was just being built and there were no churches in D.C., it was not inappropriate to provide for church services for the legislators and other government officials stuck in D.C. (How primitive the conditions in DC is epitomized by the fact that Jefferson lived his entire first term in a room and boarding house, there being no official residence even for the president.

(Another example, which is one of my wife's favorite stories: D.C. was literally a swamp and for several years its "streets" were seas of mud across which were laid wooden sidewalks. One day two Congressmen who hated each other (eventually they fought a duel) came face to face. Instead of moving to one side, Henry Clay of Kentucky stood dead center in the sidewalk declaring "I never stand aside for a soundrel, sir!" His opponent, John Randolph of Roanoke (VA) jumped off the sidewalk into the mud saying: "I, on the other hand, always do. Pass by sir.")

3) Clayton offers no response to my point(s) that, if the state really may aid religion against unbelief, it may: a) force atheists to send their children to schools in which they will be indoctrinated in views contrary to their parents'; b) do the same to Jews, Hindus, Muslims and others; c) and, if the same principle applies to limit the freedoms of expression, suppress the views of atheists, Jews, Hindus, etc. If these things really are within the meaning of the 1st Amendment, it is a very different thing than the charter of freedom we have been taught to believe.

=====================

As a final point, let me reiterate my private response to a law professor who asked me to support my assertion that many of the Founders were not Christians. I wrote:

Church-state separation is a subject in which I once was steeped, but that was 5 decades ago. Admitting, therefore, the fallibility of my memory, the following is what occurs to me: Thomas Paine of course was a deist whose denunciation of all Christianity was contained in his famous AGE OF REASON; Jefferson was also a deist, inter alia the author of a biography of Jesus (or expurgation of the New Testament) which excluded all miracles, statements and all other elements that suggested divinity (in fact, however, Jesus himself said nothing suggesting he believed himself divine). It is my understanding: that Hamilton was an atheist or agnostic, though he accepted religion on his deathbed; that Franklin was a deist; and that, though Washington attended church he refused to partake of communion.

As a child and a teenager I was a vehement proponent of church-state separation. Then in law school in the early '60s I spent a summer doing civil rights work in the South; and the next couple of years I worked as a law clerk for Bill Kunstler on southern civil rights cases. My fervor for church separation faded because the churches (mostly the black churches) were about the only allies the civil rights movement had in the South.

I didn't think much about the issue for 20 years or so. But in the era of the Moonies, Scientology and various other cults the wisdom of strict separation between religion and the state came forcibly to my attention.