Under Attack By The Religious Right: Our Establishment Clause

The NC Constitutional Amendment that would prohibit same-sex unions is more than a civil rights matter.  It represents nothing short of an assault by the Religious Right on one of our most cherished founding liberties, that of religious freedom through the separation of church and state by our First Amendment’s Establishment Clause.  This article further explores the claim that America was founded as a Christian Nation, and examines whether the Bible should be considered an infallible source upon which to base law.

Due to my recent  activity in opposing a NC constitutional amendment that would ban same-sex unions (marriage or any other form), I have been asked on more than one occasion if I am gay.  I am actually in my second heterosexual marriage having raised four children between us.  So what’s my beef with the NC constitutional amendment?  Quite simply, two things: 1) it restricts a civil right of a minority group; and 2) it represents an assault on one of our most cherished founding liberties, religious freedom as expressed in our constitution’s First Amendment Establishment Clause, that ‘Congress shall make no law respecting an establishment of religion’ (ref).

Regarding civil rights,  NC lawmakers would be writing discrimination into the state constitution.  The US Supreme Court has already declared marriage to be a civil right in unanimously striking down miscegenation law (Loving vs Virginia).  The court declared: “Marriage is one of the ‘basic civil rights of man’, fundamental to our very existence and survival…To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statues, classifications so directly subversive of the principle of equality at the heart of the 14th Amendment, is surely to deprive all the State’s citizens of liberty without due process of law” (ref).  As has been the case with objections to same-sex unions (discussed below), religious opinion (invoking God’s view) was central to prohibiting interracial marriage.  In the criminal trial of the Lovings,  Judge Leon Bazile suspended the felony conviction against them upon the condition they leave the state. He stated “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.  And but for the interference with His arrangement there would be no cause for such marriages.  The fact that He separated the races shows that He did not intend for the races to mix”.

Judge Vaughn Walker, who presided over the Proposition 8 trial in California (Perry vs Schwarzenegger), ruled after considering testimony from multiple expert witnesses that prohibiting same-sex unions also violated the Due Process and Equal Protection clauses of the 14th Amendment (ref).  The reasons for denying such a union on a civil level were shown to be every bit as discriminatory and ill-founded as those that attempted to restrict marriage based on racial classification.  In both cases, Loving vs Virginia and California’s Proposition 8, the prohibitions amounted to nothing more than discrimination directed at a segment of our citizenry.

Regarding the First Amendment concerns, make no mistake about it, what drove this constitutional amendment was fundamentalist Christian objections to homosexuality.  There is Ron Baity of Return America (ref), the group behind the campaign to pass the amendment, agreeing with conservative radio talk show host Janet Parshall that Satan’s attack on marriage must be stopped (ref).  Bill Brooks, president of the NC Family Policy Council to a group of around 3500 Christians at a rally that “…anything other than marriage shared between a man and a woman goes against God’s design for creation (ref).”  Patrick Wooden, pastor of the Upper Room Church of God in Christ in Raleigh stated “This state has to protect God’s holy institution…We want to put one more lock on the door (ref).”  And NC Senator James Forrester (R), the Senate sponsor of the Amendment, referring to Asheville, NC (that has a LGBT community) as a “cesspool of sin”, a remark that led to the issuance of an apology by the mayor of Gastonia to Asheville (ref).  All too reminiscent of the type of language issued by Judge Bazile in the Lovings’ criminal trial.

And the fundamentalist religious theme behind the NC constitutional amendment was on display in the signs held by supporters of the amendment, examples of which follow and some being incredibly mean-spirited. (Note: it is unclear as to whether the third picture came out of NC, but was felt to be useful regarding the nature of religious-based public displays on the matter).

Anti-Gay Marriage Sign

Persecution is inherent to an intermingling of church and state, something that the framers of our constitution understood well in crafting the Establishment and Free Exercise Clauses of the First Amendment.  As Thomas Jefferson penned to the Danbury Baptist Association in 1802: “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, nor prohibit the free exercise thereof’, thus building a wall of separation between church and State” (ref).

I will further explore in this article the false claim that America was founded as a ‘Christian Nation’ by today’s Religious Right.  And, considering the amount of Christian scripture cited by proponents of the Amendment, I will also consider whether the Bible should be considered an authoritative source upon which to base law.

Christian Right: Know Thy History

I have written about the claim America was founded as a ‘Christian nation’ in two prior articles.  The first was an examination of the consistent language issued by Thomas Jefferson over many decades (ref).  In the other I discussed the origins of the Religious Right through the Evangelical movement and how that movement was but in its infancy during the period of time that our Constitution was written and ratified (ref).  David Holmes work, ‘The Faiths of the Founding Fathers’, (ref) will be a primary source for this section.  I will also draw from the previously mentioned Jefferson article.

The Religious Right of today are  a ‘Johnny Come Lately’ to the Constitution party.  Holmes points out that “none of the founding fathers knew anything of the churches that became so large in the United States in the 20th century – the Pentecostals (or charismatics) and the nondenominational evangelicals”.  The evangelical movement was in its infancy in the post-Revolutionary War years, having started in Georgia through the work of the Wesley’s, credited with founding the Methodist movement (highly disciplined and conversion oriented) and the charismatic evangelical preachings of George Whitefield.  Their work left the legacy of evangelical “born again” Christianity, and the Methodists and Baptists were its greatest heirs.  “None of the founding fathers was an evangelical, although Madison did attend a moderately evangelical Episcopal church in the last years of his life.  In fact, James Monroe was offended by an evangelical sermon he attended during his presidential tour of 1817, and John Adams belonged to the anti-Great Awakening wing of Congregationalism..”.

The Southern Baptists, who separated from their Northern brethren in 1845 (ref), had their roots in the Puritan movement.  Puritans believed in a union of church and state for it was only through such a union that humans could produce a Christian society conformed to scriptural teachings. As Holmes notes, “Their goal was to produce a sober, righteous, and godly Christian society”.  And it is the tug of war between that perceived role of religion, and vision of the founding fathers who provided for a separation of church from state, that has been ongoing almost since the inception of this country.  And that Puritanical influence is apparent in the language and signs displayed by the pro-Amendment Christian crowd in NC.

Regarding the first five presidents, with the exception of George Washington (who later however became Chancellor at the College of William Mary) Adams, Jefferson, Madison and Monroe were all educated at institutions of higher education during the Age of Enlightenment, a period that placed a high value on reason.  As such, it is not surprising that all were influenced by a religious outlook called Deism, an outlook that, as described by an American cleric “..is what is left of Christianity after casting off everything that is peculiar to it.  The Diest is one who denies the Divinity, the Incarnation, and the Atonement of Christ, and the work of the holy Ghost; who denies the God of Israel, and believes in the God of nature.”  In the decades preceding the Revolutionary War, Enlightenment rationalism unseated Christian orthodoxy at Yale, Harvard and other denominational colleges.  They took exception to what they considered ‘artificial scaffolding’ that was built around Christ for the purpose of what Jefferson described as ‘pence and power’.  As Jefferson penned to John Adams in 1823: “And the day will come when the mystical generation of Jesus, by the supreme being as his father in the womb of a virgin will be classed with the fable of the generation of Minerve in the brain of Jupiter.  But may we hope that the dawn of reason and freedom of thought in these United States will do away with this artificial scaffolding, and restore to us the primitive and genuine doctrines of this most venerated reformer of human errors”.  (As a note, the correspondence between Jefferson and John Adams on religion, morals, and values has been compiled in Bruce Braden’s work ‘Ye will say I am no Christian’, [ref], another recommended read).

Regarding Christianity during colonial times, there was a tremendous diversity of Christian sects along with mainstream churches; and individual colonies treated this diversity in different ways.  For example, Rhode Island for decades excluded Roman Catholics.  Maryland had a law on the books for a while, the ‘Maryland Toleration Act’, that pertained to Trinitarians, and those who blasphemed that Christian dogma could face execution or forfeiture of all lands. James Madison, a Virginian and the primary author of our Constitution, learned of the persecution and jailing of dissenters to the Church of Virginia (Anglican).  There were clear examples of Christians persecuting Christians in Colonial America, an aspect of Christian history that did not go unnoticed by Jefferson who penned in 1782: “Millions of innocent men, women and children, since the introduction of Christianity, have been burnt, tortured, fined and imprisoned; yet we have not advanced one inch towards uniformity.”

Jefferson considered The Virginia Act of Religious Freedom to be one of his greatest accomplishments.  As written in his autobiography about the crafting of that document, “Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting ‘Jesus Christ’, so that it would read ‘A departure from the plan of Jesus Christ, the holy author of our religion’: the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination”.

So when one makes a claim that America was founded as a Christian nation, what sects or mainstream churches are they referring to?  Religious Freedom (“citizens are free to worship in any way or not at all – and that the state protects that freedom”) did not occur until the late 1780’s when our constitution provided for the separation of church from state with its First Amendment Establishment Clause and Free Exercise Clause.  Religious freedom in our country was born during a window of opportunity when Enlightenment rationality and Deist influences were at play.  And the assault on that freedom through the puritanical view of the Religious Right, whose influence came to bear largely after the ratification of the Constitution, jeopardizes one of our most precious founding liberties.

The Bible

As proponents of the Amendment have been citing much scripture as well as displaying pictures of the Bible, I want to consider whether that book should be viewed as an infallible source upon which to base common law.

“Priests…dread the advance of science as witches do the approach of daylight and scowl on the fatal harbinger announcing the subversions of the duperies on which they live”; words penned by Jefferson to Correa de Serra in 1820.  With the Bible being held by fundamentalist Christians as the inerrant (incapable of being wrong) word of God, there is much we now know to be factually incorrect within the text.  We also know that prior to the printing press (which has accurately reproduced what is held by some scholars to be an inferior version of the text, the King James Bible), Biblical scripture underwent numerous changes over a period of many centuries at the hands of scribes.

Regarding Biblical views on creation, for example, we know that Earth was not the beginning of creation, that the earth did not precede the sun, that there was not a spontaneous creation of complex life along with one man who named all the animals (a monumental task), and that modern humans never bottle-necked down to a single couple.  Regarding the latter, DNA studies that allow us to trace both maternal (mitochondrial DNA) and paternal (Y chromosome) lineages, do identify a single male and female common to all of modern man (ref). However, they lived at different times, the female dating back about 200,000 years ago in East Africa and preceded the male (who was also probably in Africa) by perhaps 50,000 to 80,000 years.  And ‘mitochondrial Eve’ was not the only woman alive at the time; nuclear DNA studies indicate that the size of the ancient human population never dropped below tens of thousands.  “In principle, earlier Eves can also be defined going beyond the species, for example one who is ancestral to both modern humanity and Neanderthals, or, further back, an ‘Eve’ ancestral to all members of genus Homo and chimpanzees in genus Pan.”  This draws into question as to how the Downfall of Man in the Garden of Eden could have ever occurred.  Man’s downfall at the hands of Satan posing as a serpent is a central tenet held by the Christian Right in that we are born into this world as sinners from the act of the first human couple and require salvation.

On a related issue, there is also the belief that a human being forms at the time of conception and inherits a soul carrying the sin of our original parents; no small matter as it is central to some religious opinion on the abortion debate.   Yet we know from studies of reproductive biology that 60 to 80 percent of all conceptions, an estimated half of them believed to be normal, are lost in menstrual flows each month (ref).  Would a compassionate Creator have designed a reproductive system that would deny so many innocents the opportunity for salvation?  And there is the issue of Chimera (ref), individuals who form early on from the fusion of two separate conceptions thus creating a singular human with a mix of tissues.  If a soul is incorporated at the time of conception, would these individuals have two souls, and if not on what basis?  It indeed is difficult to align elements of biblical text and other religious dogma with what we have learned.

“The whole of these books (the Gospels) is so defective and doubtful that it seems vain to attempt minute enquiry into it; and such tricks have been played with their text, and with the texts of other books relating to them that we have a right, from that cause, to entertain much doubt what parts of them are genuine.  In the New Testament there is internal evidence that parts of it have proceeded from an extraordinary man and that other parts are of the fabric of very inferior minds.  It is as easy to separate those parts, as to pick out diamonds from dunghills”.  Words Jefferson penned to John Adams in 1814.  And quite insightful as has been shown by studies of the text.

Textual criticism (the science of restoring the ‘original’ words of a text from manuscripts that altered them) has shown that there are more documented changes to scripture than there are words in the New Testament (Bart Ehram’s work “Misquoting Jesus” (ref), a recommended read on the topic).  Ehram, who was raised as an Evangelical Christian, chairs the department of religious studies at UNC Chapel Hill.  The alterations noted in scripture are the result of many centuries of manual copying by scribes who either made mistakes or intentionally changed or added passages to address contradictions or suit individual beliefs.  Many changes are minor, some are not.  A couple of examples.  The story of the woman taken in adultry (let ye who are without sin cast the first stone) is not found in earlier versions of the text.  Neither are the last 12 verses of Mark that are used by Pentacostal Christians to show that Jesus’s followers will be able to speak in unknown “Tongues”.  Both were incorporated by scribes many centuries later.  Were these scribes all subject to Devine Guidance with these additions to scripture?  There are many other examples as well such as the concept of the Trinity (an alteration of the word ‘who’ to ‘God’ in the Greek language?) and Joseph as the father of Christ.

If this text is held to be the inerrant word of God, let that remain a matter of faith, rather than viewing it as a factual source upon which common law can be based.  There are many fine teachings in the Bible, most notably Matthew’s account of Christ’s Sermon on the Mount where Christ bestowed his blessings on the merciful, the poor, the peacemakers, and others.  However, as was pointed out by law professor Gene Nichol in his article ‘Nailing Religious Tenets to the Classroom Wall’ (ref): “Is it possible that this central, unyielding, perfect statement of Christian philosophy [the Sermon on the Mount] is tougher to square with the actual agenda of the American political Right?”


There is no doubt the NC Constitutional Amendment banning same-sex unions is a civil rights matter, for discrimination against a minority group would be written into the state constitution.  However, the driving force behind this amendment, religious opinion about homosexuality being a sin and a perversion of God’s creation, represents nothing short of a frontal assault on one of our most cherished founding liberties, religious freedom through a separation of church and state as expressed in our First Amendment’s Establishment and Free Exercise Clauses.  Considering the history of American Christianity in the immediate post-Revolutionary War period, unless today’s Religious Right wishes to change our constitution, religious belief belongs in the church and not as part of legislation. “Christianity neither is, nor ever was a part of the common law” as Jefferson penned to Dr. Thomas Cooper in 1814.  And frankly, the use of scripture to demonize a segment of our population because of who and what they are is offensive and could hardly be considered Christian.

So, during this period of ultra-conservative politics that mingles church and state, this is a matter that has reach beyond NC.  It is a matter that can affect the freedom and liberty of all citizens to worship and believe as they see fit (or not at all if that is their preference) and not be burdened in civil society by religious discrimination.

In leaving the Legislative Building in Raleigh prior to the Senate vote, I couldn’t help but think of the words issued by our first president, George Washington (ref): “…the government of the United States, which gives to bigotry no sanction, to persecution no assistance…”.  Indeed appropriate words for legislators in NC as well as other states to remember.


  1. Art, I enjoyed your blog and couldn’t agree with you more.  I think that in the next election we need to get Paul Stam and his cronies out of the legislature!!!  Jane Demeritt


  2. Thomas Jefferson: “Priests…dread the advance of science as witches do the approach of daylight”

    Extremist Christian fundamentalists HATE environmentalists and science.  If mankind is able to turn the tide of damage done to Mother Earth, that diminishes the threat of using Gawd’s fire & brimstone as power to control the masses.  The nutjobs produced a video called “Resisting the Green Dragon” to make their flock of sheeple fight AGAINST cleaning up the environment. 
    The nutjobs fail to mention that “Big Oil” is the name of their God.  The Religious Right and Big Oil are joined at the hip to push their agendas, or more precisely, IMPOSE their agendas upon all Americans. 


    If you watch the video, you clearly see that it is these so-called Christians who hate and fear environmentilism because it threatens their “Christian” hocus pocus money making machinery – religion, fear, fire and brimstone!

    For pete’s sake, you would think Janet Parshall was talking about Voldemort with all the fear-invoking buzz words (in bold) she used in the introduction of this video:

    Janet Parshall, Author and National Radio Host
    “In what has become one of the greatest deceptions of our day, radical environmentalism is striving to put America and the world under its destructive control.  This so-called ‘GreenDragon’ is seducing your children in our classrooms and popular culture.  Its lust for political power now extends to the highest global levels.  And its twisted view of the world elevates nature above the needs of people of even the poorest and most helpless.  With millions falling prey to its spiritual deception, the time is now to stand and resist.  Around the wold, environmentalism has become a radical movement, something we call the Green Dragon, and it is deadly.  Deadly to human prosperity, deadly to human life, deadly to human freedom and deadly to the gospel of Jesus Christ.  Make no mistake about it, environmentalism is no longer your friend, it is your enemy.  And the battle is not primarily political or material, it is spiritual.” 

    Here are a couple more incredibly ignorant remarks in the video:

    Bryan Fischer, American Family Association
    “As a former pastor, I’m always on the alert to threats to the Christian faith. And make no mistake about it, environmentalism is exactly that.  It is its own religion.”

    Dr. Richard Land, President, Ethics and Religious Liberty Commission, Southern Baptist Convention
    “Environmentalists have a long history of believing and promoting exaggerations and myths.”


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