Crazy things keep coming out of Texas (where I once lived decades ago) – the Texas pledge of “one state under God,” public school Bible courses, Religious Viewpoints Anti-discrimination Act and now, defining a fetus (or unborn child to some) as a “person” for purposes of the capital murder statute.

My real concern is not with the bonus for prosecutors — two convictions for one murder. That’s right. Under TX Penal Code 1.07(a)(26), an “‘Individual’ means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”

No, my concern is that the Texas legislature routinely drinks Christian right Kool-Aid, which can be seen from above example of its definition of individual being religious-based, not science-based.

Two weeks ago on Nov. 20, a Texas Court of Appeals affirmed the conviction of Jacob Eguia for capital
murder for causing the death of Ruby Elaine Garcia and her fetus during the same criminal transaction. Eguia was sentenced to life in prison, which was the only possible sentence since the State did not seek the death penalty.

Among other defenses, Eguia filed a motion to quash the indictment against him for causing the death of Garcia’s fetus because the Texas statute that defines an “unborn child” as a “person” for purposes of the capital murder statute is unconstitutional. In particular, he alleged that the definition violated the Establishment Clause of the First Amendment of U.S. Constitution because the definition “has the effect of endorsing religion as it is based solely upon a religious belief that life begins at conception.” (Eguia also complained of a violation of Texas’ constitution – “no preference shall ever be given by law to any religious society or mode of worship.” Tex. Const. Art I, § 6.)

In holding that the Texas law defining an “individual” did not violate either the U.S. or Texas Constitutions, the appeals court said: “A statute is not automatically rendered unconstitutional simply because it advances ideals that harmonize with religious ideals. Harris v. McRae, 448 U.S. 297, 319-20 … (noting that Judeo-Christian religions’ forbiddance of stealing does not preclude state or federal legislatures from outlawing larceny).”

The appeals court also said that Eguia also “fail[ed] to demonstrate how the statute’s principal or primary effect advances religion, or how the statute fosters excessive government entanglement with religion.”

I believe that the appeals court analogy with stealing is misplaced because, unlike stealing, the notion that life begins at conception is uniquely a religious viewpoint.

However, because I am not familiar with the trial record, it would be inappropriate for me to comment on whether or not the defendant sufficiently proved of his Establishment Clause violation claim.

Instead, I’ll close by saying that in our judicial system the deck is stacked heavily against those who claim a violation of the principle of separation of church and state and that complainants probably need two, three or four times as much evidence as they think would be sufficient. What is needed is a smoking gun (so to speak) where there is a record of a religious purpose for enacting the challenged legislation.

Well, now I think I’ve seen everything, and you can see it too.  OK, it’s just the straw that broke the camel’s back, but really, the biggest loser of this election was not a party or a person, it was the wall of separation between religion and government.

This campaign showed us Mike Huckabee and his “it’s not really a cross” ad, as well as his desire to change the constitution to “God’s standard.” We also witnessed some eager candidates proclaiming their non-belief in evolution and Mitt Romney’s Faith in America speech. We had various cries that now President-elect Barack Obama was a Muslim and now lame-duck U.S. Senator Elizabeth Dole’s two attack ads, both railing against the supposed connections to “godlessness” of her opponent Kay Hagan. More concretely, three states passed ballots that banned gay marriage.

Now I’m sure I’m overreacting, but then lets look at the campaign that was.  Even the president of the Catholic League, Bill Donahue–a pretty religious guy–found Huckabee’s ad to be over the top.

“The whole idea is to give the appearance of a cross,” Donahue said, “and this is just injecting religion into politics even too far for guys like me.” I think proposing changing the constitution to God’s standard speaks for itself.

The question about belief in evolution seems like it might be a science question, but I think that’s disingenuous. The question is really to see who is willing to say “God created the Earth.”  There really isn’t a science controversy here. We don’t need to teach the controversy to educate voters.  It’s just a ploy to get religion into the campaign, just like Intelligent Design is a ploy to get psuedoscience in the classroom.

Next we have Mitt Romney’s “Faith in America” speech.  Even the fact he had to make this speech speaks to a problem separating religion and government. This speech was intended to be a John F. Kennedy-like statement separating Romney from the Mormon church, and showing Romney would represent everyone. It ended up sounding more like he would represent only god-believers. But the real issue is that he shouldn’t have needed to make the speech to defend his religion anyhow.  We’re supposed to have no religious litmus tests in this country for public office.

Again the whole “Obama is a Muslim,” smear is pretty self-evident. The idea that accusing someone of a religious affiliation, or even no religious affiliation, as a smear is by itself repugnant.  Yet smear it apparently is.  And I’ll be more explicit, Article 6, section 3 of the U. S. Constitution says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Of course, this specifically applies to the government-imposed religious tests, however, as far as the American public is concerned, it not only shouldn’t matter whether Obama or any other candidate is a Muslim, Mormon or atheist, but it shouldn’t even be a topic of conversation. When you hire someone for any job, you can’t ask them about their religion. Why can we ask presidential candidates?  Aren’t they applying for the job of president?  We wouldn’t tolerate it anywhere else.

And then we have the “Godless Ads.”  Kay Hagan, is a godless heathen. A godless heathen who is an elder in her Church.  Hmm…we godless heathen types are trickier than I thought.  Years of church attendance and all that so we can secretly take over the world through the churches!!!  And as to the “godless fundraiser” Hagan attended, at the house of Woody Kaplan, apparently if you have an atheist in attendance, or as one of over forty sponsors,  it’s an atheist event.  I never knew what power we had!!!  You know I keep looking to see if this is a Landover Baptist moment, but you know, Toto, I don’t think we’re even in Landover anymore.

And last, but the most heartbreaking were the Arizona, California and Florida anti-gay-marriage decisions.  Marriage has always been on the peripheral of issues surrounding the separation of religion and government. Is a marriage an issue left to God and the churches, synagogues and mosques? Or is it a matter of civil law, of ensuring that all Americans have equal–not special–rights and protections under the law?

The argument that it is a state issue, in the sense of protecting families and children, is specious or there would be an outcry against straight marriages that have no intention of producing children.  Civil law guarantees rights and protections for couples in a union, period.  Civil unions and religious marriages need to be separated from each other in order to ensure that everyone’s civil rights are protected. A civil law same-sex marriage does nothing to harm religiously recognized marriages. The measures that were not passed would have proved this separation between religion and government, and were very much necessary.

Want to know why we should separate religion and government? This campaign cycle was definitely a poster child for what can go wrong when you let the two interfere with each other too much. Let’s hope we all as Americans can learn something from this election cycle, and see that it doesn’t happen again.

There’s a new ad purchased by the Judicial Confirmation Network. It starts out just fine: “America: land of opportunity and prosperity.  But what made America great is what we stand for.  Liberty, equality, inalienable rights.”  I’m with them so far.  Actually, they don’t lose me for another 12 words or so.  Here’s the full ad:

America: land of opportunity and prosperity.  But what made America great is what we stand for.  Liberty, equality, inalienable rights.  Fixing the economy is crucial but America’s principles and Constitution are threatened by one more liberal activist vote on the Supreme Court.  Please join Judicial Confirmation Network.  Help spread the word. It takes just one vote.  Judicial Confirmation Network paid for this message and is responsible for it.

While the voice-over is talking about “America’s principles and Constitution” a list of issues appear on screen:

“Under God” in Pledge of Allegiance
Same-Sex Marriage
Partial Birth Abortion
Taxpayer-Funded Abortion
Protecting our Homes
Human Cloning
The 10 Commandments
Expanding Right [sic] for Terrorists

Now, the ad doesn’t specify where they stand on each of the issues (do they support ‘protecting our homes’?) but we can make a few guesses from context.  Am I the only one who finds it ironic for them to tout America’s commitment to equality ten seconds before criticizing the right of gays to marry?  Or to praise America’s long tradition of liberty before trashing the separation of church and state that was so important to the Framers?  Or to speak of inalienable rights before implying that suspected terrorists (remember, they haven’t been tried) shouldn’t have those rights?

The Constitution grants everyone the liberty to be a full citizen no matter what their religious views – nobody should have to affirm a belief in God to recite the Pledge of Allegiance.

Treating everyone equally means granting all adults the right to enter a legal marriage, regardless of their sexual orientation.

Some rights – such as habeas corpus – are absolutely fundamental to rule of law.  Giving the president unconditional power to imprison citizens without trial is directly contrary to the inalienable rights the Framers envisioned.

If they like, the Judicial Confirmation Network can openly state that they’re against civil liberties, against equality, and against due process of law.  But they have no business invoking our “Principles and Constitution.”

The Alliance Defense Fund (ADF) gathered 33 ministers together and on September 18th, they spoke to their congregations about the Bible and the upcoming elections, and at the very least, suggested who they should vote for.  After delivering the sermon, they are expected to send copies of their sermons to the IRS, to protest the current restrictions placed on churches as tax free entities. They called the event Pulpit Freedom Sunday.

The protest is testing their ability to, get a court of law to repeal a 1954 amendment to the tax code that restricts charitable organizations known as 501(c)(3)s, which accept tax-deductible contributions, from intervening in political campaigns. The legislation was intended to prevent nonprofit organizations from funneling money and resources to political candidates.

The arguments in favor of removing this restraint revolve around freedom of speech and religion and the notion that this law gives the IRS the right to decide what can and can not be preached.  This, opponents of the law contend violates the spirit of separation of church and state.

The argument while sounding valid is a bit spurious to my reasoning because churches agreed to state involvement when they took the tax exemption.  They can renounce it just as easily.  Churches, like non-profits do benefit greatly from the ability to accept tax free donations, but I wonder who would stop giving money to their church, even if it wasn’t tax deductible?  Do they not love God enough to give money without a tax credit?  And can’t churches create 501c(3)s to do there charity outreach and simply allow their ministers to say what they want?  Why is there this need to have it both ways?

All freedoms in America have a limit.  I had a teacher who used to say something like “My personal freedom to swing my fist ends at the tip of your nose.”  Well, religious freedom and freedom of speech end for all tax exempt entities at the point of intervening in political campaigns.  No one is complaining that the heads of non-profits and charities can’t tell their constituents who to vote for so the freedom of speech complaint doesn’t seem valid to me.  It all comes down to the misguided notion that religious freedom has no limits.  Yet it must, or child abuse, honor killings and other crimes could be hidden or excused as religious acts.

Separation of religion and government would include the state neither helping nor hindering any church.  The state helps churches by allowing them tax exempt status, but then hinders them with the restriction on political speech that tax exemption entails.  We haven’t true separation of church and state in this country, but that doesn’t mean we need less separation and not more.  We have achieved a balance where the church is helped to do good works, but restricted from becoming a political force, to undo this balance could undo the religious freedom and diversity this country now enjoys and would hurt more churches than it would help.

I was asked this afternoon by Interfaith Alliance to review its new YouTube video Pulpit Politics: The Race for Pastor-In-Chief.

On a few occasions, I’ve felt uncomfortable, as a nontheist, with some positions of the Interfaith Alliance, because I’m a strict advocate of separation of church and state.

But, I am in complete agreement with the organization’s opposition to pulpit politics — including this Sunday’s call by the Alliance Defense Fund for ministers to endorse a candidate in November’s presidential election despite it being a clear violation of the U.S. tax code.

The video shows some clips of extremist pastors endorsing John McCain and Barack Obama — with the implicit message that we should oppose pulpit politics because extremist pastors are the ones who typically endorse candidates.

I guess using fear is the best tactic (though not typically my favorite approach) because asking pastors to comply with the First Amendment’s mandate of separation of church and state based on the U.S. being a religiously diverse nation is a hard sell.

Hope you enjoy the video, and pass the link on to a friend or two.

The Minnesota Court of Appeals says that they should not be:

The Minnesota Court of Appeals ruled Tuesday against the cab drivers’ attempt to block penalties for refusing service.

The Metropolitan Airports Commission adopted an ordinance in March 2007 that suspends a driver’s taxi license for 30 days for refusing to pick up a passenger for any reason at the Minneapolis-St. Paul International Airport. The penalty for a second refusal is a two-year license suspension.

Why would a cabdriver refuse to pick up a passenger? In this case, some Muslim cabdrivers were refusing to pick up passengers from the Minneapolis-St. Paul International Airport who were carrying alcohol, citing Islamic prohibitions. As a response, the Airports Commission made these regulations, stating that cabdrivers at the airport cannot refuse passengers. And now it has been playing out in the courts after some drivers challenged the rules on grounds of religious freedom.

While religious freedom should be accommodated whenever possible, in this case the cabdrivers were simply refusing to do their job at great inconvenience to travelers. Allowing the cabdrivers the right to discriminate would be a slippery slope; why couldn’t cabdrivers then refuse to carry gay and lesbian passengers on religious grounds? Consumers depend on cabdrivers to perform their work in a nondiscriminatory manner. Travelers arriving at the airport should be able to get the next available taxi without going through the inconvenience of finding one that does not object to carrying them.

To me, the issue is analogous to pharmacists who refuse to prescribe certain medications, such as the morning after pill or birth control, because they object to those particular medications on religious grounds. Certainly, the refused customer can attempt to find another pharmacy that will fill the prescription, but it is a great inconvenience, and it is conceivably difficult to do in some areas that have very few pharmacies. At this point, the rights of the consumer must be protected.

If you go to a pharmacy, you should be able to expect that the pharmacist will fill your prescription. And if you are seeking a ride at the airport, you should be able to expect that the next taxi in line will not discriminate against you.

In a representative democracy, we elect officials to serve America’s best interest. Politicians must wrestle with difficult questions: Is it best for America to allow abortion? What would the costs and benefits be if we allowed gays and lesbians to marry? Does America want to pledge unconditional support to Israel?

But instead of acting in America’s interests, many politicians – I don’t care which party they belong to – shirk their responsibilities and decide to do what they think God wants. In a 2004 interview with PBS’s Religion and Ethics Newsweekly, Rep. Mark Souder (R-IN) said:

The way I would work this through in my mind is, the closer to the clearness of the Bible, the less ability I should have to compromise. So I view, on abortion, there’s really not much room to compromise. On certain very difficult issues, because I have friends who are homosexual — gay — but there just isn’t much room to compromise…

Rep. Souder is perhaps more famous for his statements on separation of church and state, saying:

To ask me to check my Christian beliefs at the public door is to ask me to expel the Holy Spirit from my life when I serve as a congressman, and that I will not do. Either I am a Christian or I am not. Either I reflect His glory or I do not.

This is a common argument against secularism. It is also an unconvincing one.

His wife is part of his life. I have no doubt that he loves her deeply and cares what she thinks. But when he acts as a Congressman in the House of Representatives, we demand that he consider what is best for his constituents and for his nation. If his justification for voting against a law was, “My wife didn’t like it” we would ask for his resignation. Instead, he would have to explain why his action was best for the U.S. – regardless of how it affects his wife.

We are not asking Rep. Souder to check his faith at the door any more than we expect him to check his wedding ring. But if he cannot ignore her wishes – or God’s – when he makes political decisions, he is unable to perform the duties of his office. If anything, he should pay more attention to his wife’s opinion than God’s. She lives in his district.

The Washington Post reports today on an effort by the Alliance Defense Fund (ADF) to encourage pastors to openly defy IRS regulations and endorse political candidates from the pulpit. The ADF claims to have several dozen pastors ready to make open endorsements on September 28th in a direct challenge to tax regulations that require churches to remain nonpartisan in order to keep their tax-exempt status. The Post quotes ADF attorney Erik Stanley:

“For so long, there has been this cloud of intimidation over the church…It is the job of the pastors of America to debate the proper role of church in society. It’s not for the government to mandate the role of church in society.”

The movement hopes that a subsequent IRS investigation could be challenged in court, leading to a Supreme Court ruling that overturns the prohibition on endorsements from tax-exempt political entities as unconstitutional.

To counter this action, a group of clergy, cooperating with several former IRS officials, are pushing back before the ADF protest begins. The group is asking that the IRS investigate whether or not the ADF itself is putting its tax-exempt status at risk and also if the organization is violating ethical rules by having its attorneys advise pastors on how to break the law.

Project Fair Play, a new website sponsored by Americans United For Separation of Church and State, outlines what IRS regulations have to say about politics from the pulpit. Not only do IRS regulations expressly forbid endorsing candidates from the pulpit or in any other way by using official church resources, but in cases where churches violate these regulations, punishments have been handed out, including the revocation of tax-exempt status.

What I find particularly frustrating about this discussion is how the ADF attempts to portray itself as standing up for freedom of speech and religion in the face of supposedly onerous government restrictions on religious speech. But churches simply face the same restrictions that other nonprofit, tax-exempt entities face. Nor are pastors excluded from participating in politics; they may discuss social and policy issues and the importance of voting in general in their official role and endorse candidates or campaign for them as private citizens off-the-clock. What the IRS regulations prevent is churches bringing their tax-exempt resources to bear on behalf of a candidate. This is one small counter to the already enormous influence of organized religion on the political process in the United States.

Violations of tax law by churches in the United States can be reported to Americans United at Project Fair Play.

Americans United for Separation of Church and State has won a victory for the separation of religion and government in a lawsuit they filed in Florida along with a coalition of civil liberties and education groups and which was heard yesterday by the Florida Supreme Court.

At issue yesterday were three ballot amendments, two that directly involved church and state (subject to the AU lawsuit) and another addressing property taxes and public education. As the Miami Herald reports:

Amendment 5 — known as the tax-swap amendment — would have eliminated property taxes that pay for schools, lowering average tax bills by 25 percent and forcing legislators to replace the money with sales and other taxes.

Amendment 7 would have repealed the 100-year-old ban on direct state funding of religious institutions, including religious schools.

And Amendment 9 would have overturned the state Supreme Court decision that invalidated state-paid vouchers for students in failing public schools to attend private schools.

All three amendments were placed on the ballot by the Taxation and Budget Reform Commission, a panel of citizens that only meets once every twenty years. The court ruled that the commission had exceeded its authority on the voucher-related amendments and that Amendment 5 was worded in a misleading manner and struck all three amendments from the November ballot.

What is really striking about the juxtaposition of the three amendments is that Amendment 5 would have denied the state a primary funding source for public education by cutting property taxes but made no provision for a new revenue stream for public schools (beyond protecting funding for one year after passage), while Amendments 7 and 9 would have stepped up state support for private, religious education, thus delivering a one-two punch to both the public education system and the separation of religion and government. Voucher supporters often point to failings within the public school system as a reason to support paying for students to go to private schools, but they ignore another answer: giving public education the support it needs. In this case, passage of all three amendments would have denied public schools funding while channeling state money to private, religious schools, giving students in Florida more incentive to leave failing public schools and attend private religious ones at taxpayer expense.

Fortunately, these rulings will not allow this scenario to unfold. Congratulations to Americans United and its partners in the lawsuit for this victory in defense of secular public education and the separation of church and state!

After far too much kvelling, I’ve been asked by my colleagues in the Secular Coalition for America office to take a moratorium on mentioning the name Stephen Colbert. But He who shall not be mentioned was so much fun! A few weeks back, I taped a two hour interview for the Colbert Report that was cut to a five minute segment. (We were aware in advance that this is how it is done.) While I am sworn to secrecy on some of the more detailed descriptions of the process, I can generally attest that the Colbert folks, including Stephen himself, were very gracious and put this guest quite at ease.

Many individuals have asked which parts of the long interview I would have liked to have seen in the final cut (as opposed to on the cutting room floor). There was a very funny pledge of allegiance, much information about military proselytizing, and my insistence that Stephen and I don’t have to agree on theology to agree to live in a civil society – not a theocratic one. Of course I covered lots of issue oriented things that didn’t make the final cut, but the goal was to let the Colbert Nation viewers know that the Secular Coalition for America exists and then have them go to our website to get more extensive information. Mission Accomplished.

I received numerous e-mails after the show expressing excitement about the interview and those who “get” Colbert’s format understood how it works. But I also got one very funny e-mail, though the sender didn’t realize it was funny. The gentleman wrote about the issues I should have covered during the five minute interview (I guess he thought it was a live-to-tape five minute stint). He seemed to think it was supposed to be a serious debate with a serious opponent – and missed the satire completely.

After the taping, I asked Stephen to autograph my copy of his book, I Am America and So Can You. For anyone who hasn’t read it, he has a terrific section on the “Big Secularist Agenda” and how the secular “caucus” of Representative Pete Stark (the only out nontheist in Congress) – he, himself and him – is taking over. Mr. Colbert inscribed the following in the front of my book: “Better watch your back. GOD [underlined three times] bless you. Stephen Colbert.” Ya gotta love this guy!