A Reasonable Way To Handle Religious Conflict On Public Property

You almost felt bad for them. As local assembly members in Kenai Peninsula, Alaska, bowed their heads for an invocation, they could not have prepared for Iris Fontana’s satanic word-salad:

“Let us embrace the Luciferian impulse to eat of the tree of knowledge and dissipate our blissful and comforting delusions of old … [t]hat which will not bend must break, and that which can be destroyed by truth should never be spared its demise. It is done. Hail Satan.”

Well, I did say “almost.”

Public Property
Image source: Wikimedia Commons
Public Property

Religion in the Public Square

Satanic Temples and Atheist organizations – like the irreverently christened “Church of the Flying Spaghetti Monster” – are taxing the limits of religion in the public square. Some have even convinced public schools to offer “After-School Satan Clubs.”

Two weeks ago, Oklahoma City permitted a Satanic Black Mass at a local civic center, on a Catholic holy day. Despite a petition demanding cancellation (garnering more than 100,000 signatures) city officials let it to go forward.

The Satanists insisted that their right to religious expression is no less inviolate than that of Christians, who routinely give invocations, set up Nativity scenes, and even place crosses on public property.

True believers aside, many of these activists would freely admit their ruse. The Flying Spaghetti Monster – obviously a mockery of traditional religions – has even been likened to Bertrand Russel’s teapot analogy.

Justice Ruth Bader Ginsburg would probably argue that it should not matter even if this is one big subterfuge, since the government should not be evaluating the relative sincerity of religious beliefs.

And she would be right.

Curiously, neither Lincoln nor Jefferson felt compelled to give Buddha, Zeus, Satan, or the Flying Spaghetti Monster equal time.

Whether we take Satanists and “Pastafarians” seriously – indeed, whether they take themselves seriously – is beside the point. Their argument is not that we should all become Satanists, but that the public square ought to be religiously neutral, lest we run afoul of the separation of Church and State.

Are they right?

Religious Freedom

The idea of religious freedom caught fire during the European Enlightenment after centuries of religious wars and the chilling consequences of governmental authorities enforcing religious doctrines.

By the early 17th century, the Americas had become a veritable Petri dish for the germ of tolerance.

Dissenting from the Church of England, Puritan separatists set out for the New World. Alas, they proceeded to set up a theocracy in Massachusetts, establishing religious tests, banishing heretics, and burning witches.

Old habits die hard.

Meanwhile, neighboring colonies would implement religious freedom statutes, becoming safe havens for Quakers, Baptists, Jews, Catholics, and Atheists.

Over the next two centuries, religious freedom would ebb and flow. In 1689, Puritans seized control of Maryland, and forbade Catholics from holding office. Baptists, Presbyterians, and Quakers would continue to press for the disestablishment of colonial churches, right up until the Revolution.

Not Very Neutral

In 1791, the Federal government enacted the First Amendment, taking an unambiguous position on religious freedom. In 1802, Thomas Jefferson echoed Roger Williams – an early Baptist, and bête noire of colonial Puritans – writing that the amendment created a “wall of separation between church and state.”

So vital to Jefferson was the cause of religious freedom that the three accomplishments on his gravestone would be the University of Virginia, the Declaration of Independence, and the Virginia Statute for Religious Freedom.

Yet Jefferson – whose own religion remains under debate – cites God in the Declaration, and the Virginia Statute. In fact, so too did several State Constitutions in the very clauses declaring religions freedom.

Four score and a few years later, Abraham Lincoln would invoke God about 53,000 times in support of abolition. God was later cited by suffragettes and civil rights activists as well.

Curiously, neither Lincoln nor Jefferson felt compelled to give Buddha, Zeus, Satan, or the Flying Spaghetti Monster equal time as they publicly advanced these bedrock laws and policies.

If local residents want a Nativity, must they also be compelled to have a skeleton Santa hanging on a cross?

It is as if nobody thought religious freedom meant that every religion in existence had to be formally acknowledged any time the topic of any religion pops up in the public square.

Nor did anybody view prayer at the beginning of a legislative session as a formal establishment of religion, either.

This is not to say that Jefferson’s idiosyncratic beliefs about God and religion must be shared by all Americans – to the contrary, his deistic beliefs are not even shared by most.

But routine appearances of religion in the public square do suggest that religious freedom is not concerned with purging the most desultory references to religion. Nor should it mean that every religion, must take up equal public space, each and every time any other religion is mentioned.

That’s just madness.

While it is a worthy mission to plug the dike of inchoate theocracy, a Nativity scene in front of a courthouse hardly seems tantamount to the rise of a caliphate in Peoria.

So, if local residents want a Nativity, must they also be compelled to have a skeleton Santa hanging on a cross?

What is the Public Square?

The “public square” is merely a euphemism for public property. Although many debate the constitutionality of the incorporation doctrine, the Establishment Clause effectively applies to all Federal, State, and local government property.

Many of us would like to live in Libertopia where all property is private, and public property conflicts are rendered moot. But since we don’t, how do we deal with these inevitable conflicts?

In a sense, even public property is owned. The common owners are the local residents and taxpayers. However, in practical terms, taxpayers are not free to sell their ownership interests (like they could with private property) or withhold their taxes.

If Town X is 99% Zoroastrian, it is perfectly mystifying that they should be forced to sit through some Goth kid waxing on about Luciferian impulses.

Still – and assuming we aren’t going to privatize all public land – we might at least put its usages to popular vote. The majority of interested members (local residents) should vote for trustees (council members) to set the rules and determine the land’s usage.

By analogy, in a joint-stock company, 1% of the stakeholders would not override the preference of the other 99%. Yet, this is essentially what happens when the City of Detroit lets the Satanic Temple erect a Baphomet statue on public grounds, regardless of popular consent.

And if local government can ignore popular opinion, shouldn’t residents be free to withhold their taxes?

Say, isn’t this just called “democracy”?

It’s Not an Establishment of Religion, It’s a Violation of Property Rights

Certainly, religious freedom would preclude Town X from voting by majority to establish a theocracy. Similarly, they can’t vote by majority to reintroduce cruel and unusual punishment, as this would be ultra vires. Nor may a joint-stock company vote to enact policies outside the scope of its bylaws.

This should all be fairly obvious. But it should likewise be obvious that unless a government is using its police powers to coerce religious practice, mere public references to a religion held by most of the local residents is probably not an “establishment” of religion – certainly not in the sense dreaded during the Enlightenment.

If the people of Town X want a satanic invocation before their council meeting, they should be free to have one. But if Town X is 99% Zoroastrian, it is perfectly mystifying that they should be forced to sit through some Goth kid waxing on about Luciferian impulses.

Robert ColemanRobert Coleman

Is a Berkeley alumni and Pepperdine Law graduate, and General Counsel for a national corporation.

This article was originally published on FEE.org. Read the original article.