Anyone who thinks that religion has no place whatsoever in codified law is confused, since you have to at least have a law saying that religion has no place in codified law . . . Which immediately makes the law self-disproving, since religion then has a place, in the law saying it has no place.

My take on separation of church and state is like this:

Say you happen to belong to a religion that believes unicorns created the world and told our ancient ancestors exactly what laws were needed in order for mankind to live in peace and harmony. Say, further, that one particular law spoken of by the unicorns has not yet been adopted by a particular governing body in your particular representative democracy.

Does the fact that the unicorns spoke of this as yet not adopted law mean said law has "no place in the law?" Of course not. As a unicorn follower, you should, and have a right to, participate fully in the representative democratic process to attempt to get this law passed, and ensure peace and harmony in the land.

However, "the unicorns said this law would bring peace to the land" is not, and cannot be, your justification for passing the law. That is the church/state separation boundary, in my opinion. It's not that you can't pass the laws spoken of by the unicorns; it's that the unicorns themselves cannot be referred to as an authority for passing the law. You have to work through the democratic process -- the fact that the unicorns say the law is a good one doesn't trump democracy.

Now, where this gets sticky is when the majority of people believe in unicorns. What if they elect unicorn believers who pass all the laws spoken of by the unicorns, all through the representative democratic process, without mentioning the unicorns as a justification for their laws? Rather than saying "we're passing these laws because the unicorns said we should," they say "we're passing these laws because the voters want these laws."

Now we have a mindbender of a problem: Democracy doesn't really matter once a majority of unicorn believers occupy the country and vote according to unicorn law. Once they're in control, there's no practical difference between a unicorn theocracy and a democracy occupied by a majority of unicorn believers. In either case, the law as spoken by the unicorns rules, and any dissenters are effectively silenced.

That's where the fight about separation of church and state gets really messy. The unicorn believers say "hey, we're citizens in a democracy -- we have a right to vote for the laws we want." The non-unicorn believers say "well, why the heck have a democracy in the first place if all it does is pass the laws dictated by the unicorns?"

That particular dilemma is where democracy kinda breaks down for religious folks, because ultimately, religion isn't democratic. It isn't about rule by the people -- it's about people doing what they're told to do by the unicorns (or whoever). At the very least, democracy for religious folks is a means to an end -- an end that doesn't include democracy, because ultimately it's about making sure the unicorns, not the people, rule.

It's not that you can't pass the laws spoken of by the unicorns; it's that the unicorns themselves cannot be referred to as an authority for passing the law.

Well said.

See also: John Rawls, "Justice as Fairness: a Restatement."

Whoever told you to write on this topic was a genius!

Those with interest in the subject could bookmark the site www.hillsdale.edu and get on their mailing list for Imprimus (it is free). Right now Daniel L. Dreisbach has a short history on the judicial lie aka Wall of Separation.

Oh, and on a tangential note (?), blue laws are ridiculous.

The First Amendment proscribes an established church, not laws inspired by religion.

When I was in a junior high civics class we were listening to cases that had come to the Supreme Court and discussing what we thought the results should be before finding out what the decision had actually been. I was just floored that Blue Laws were upheld. I'm not talking about the laws governing liquor sales. I'm talking about the old draconian ones that had all stores closing on Sunday. The case had been brought by some Jewish storekeepers who had to close two days of the week so they could observe their Sabbath and then they were forced to in effect recognize the Christian Sabbath the next day. The Supreme Court rationalized it away by buying into the plainly false argument that it was done to protect workers. If the goal had been to protect workers a day off could be mandated. Picking one day of the week that "just happened" to be the Christian Sabbath gave it away IMO. It irritated the heck out of me and certainly helped form my opinion of state/religion relations.

It's not that you can't pass the laws spoken of by the unicorns; it's that the unicorns themselves cannot be referred to as an authority for passing the law.

A guiding principle in First Amendment law is that the law must be religiously neutral - that is, it must be neutral as to the various religious sects, and it must be neutral between religion and atheism. The state can't exclude one voice from the public sphere.

If you prohibit people from saying "the unicorns think this is a good idea, therefore it is a good idea" you have not only infringed on their right to free speech, but you have privileged atheism (or, at a minimum, a-unicornism) over unicornism. Because now the law allows appeals to any source of authority *except* the prophets of the unicorns.

Thus, the free exercise clause is a close cousin of the free speech clause: democracy functions best only in a free marketplace of ideas, where anyone can advocate any law for any reason.

"That particular dilemma is where democracy kinda breaks down for religious folks, because ultimately, religion isn't democratic."

What a bunch of hooey. Let me ask you this one: why support 'democracy' (which hopefully you're not actually supporting; I presume you'd prefer a representative democratic republic a la the US rather than a true democracy, which is dictatorship of the majority) at all? It's only 'religious' values (whether recognized as such or valued inconsistently) that promoted 'democracy' in this country in the first place.

Simon: I can't speak for Phil, but if you read Rawls, he makes a distinction between politician-speech (i.e., what can be legitimately argued on the House floor) and non-politician-speech (i.e., what the High Priest of Unicornism advocates). Under a Rawlsian theory of public reason, it's perfectly fine for Joe Schmoe to say that because unicrons say it should be so, it should be so. It's just not okay for the people who actually make the laws to do that.

Now, one can take plenty of issue with this distinction, and it's worth pointing out that Rawls was aware of the First AMendment implications of his arguments. He just thought it was an acceptable breach of politicians' rights if it would lead people to an overlapping consensus.

But why pay any attention to what Rawls says? Why bother going for 'overlapping concensus' in the first place? According to what moral principle ought one to do so? IOW, Sez Who?

In days gone by when the great majority of people in American communities were church-goers, blue laws could probably be considered akin to laws against "disturbing the peace," in that they simply reflected the wishes of the community to have a genuine Sabbath day. Now that even most Christians have abandoned the practice of the Sabbath, these laws make little sense.

I'd also point out that observant Jewish storekeepers are little better off now than when blue laws kept stores closed on Sundays. Now most stores are open 7 days a week, and if any store owner wants to close up on either Saturday or Sunday, he/she is losing a huge group of potential customers.

Gosh, I haven't talked about this stuff for, like, two years. Once I finished my thesis I pretty much voided it all from my brain and started filling the space with 1L classes, lol. As such, I don't know that I could do a very good job of explaining the whole deal - I recommend very much reading "Justice as Fairness," though.

The basic premise that Rawls was going at with his theory of public reason is that we need to have laws for which the reasons to support them are things that everyone can understand, even if they disagree. This will in turn make politicians' political discourse less vitriolic, more reasoned, and in general make a country run a whole lot smoother.

For instance, say you and I are legislators and you want to ban Internet gambling because it's a huge time sink and some people get addicted to it. While I might disagree (and try and make arguments against your plan, say by trying to show that those people gamble anyway and that banning internet gambling won't solve anything), I'm not in any way antipathic towards your arguments. I can't be, any more than you could be against the rebuttal I described. Whichever policy gets enacted, we (and the people of the country) will follow it because we/they understand how the law could be passed.

On the other hand, if you say that "unicorns told me to ban gambling" and somehow get the policy passed over my empirical objections, then the rule of law (and only the rule of law) will keep people who are non-Unicornian from violating the law. And it probably won't do a very good job of that. And further, if enough laws are passed that people can't understand the justification for, and thus enough laws are skirted or ignored because people don't know why they should have to follow them ("I don't believe in unicorns! I want to play online poker!"), then the rule of law breaks down completely. If people only follow laws that they want to, there is no rule of law.

Thus, a society should strive to pass laws not that all its members can agree with, but at least for reasons that they can all understand.

And so what Rawls is looking to avoid is the ridiculous polarization of politics that seems to exist right now because it could well lead to the breakdown of society as we know it; an overlapping consensus is desirable specifically because it encourages politicians to work together for the good of the country as a whole, rather than their own selfish desires. (And if a national overlapping consensus is impossible on any given issue, well, that's what state and local governments are for; the same concepts would apply on a smaller scale, too.)

I hope that at least helps you understand?

Yes, yes, but WHY OUGHT we to strive to prevent the breakdown of society, or any other goal that Rawls' prescriptions would tend to prevent? Can he give any good reason why anyone ought to strive to do that, other than his personal preference? Which, after all, is a matter of taste, non? What if someone simply enjoys the spectacle of societal breakdown, or thinks that certain actions he might take will tend to lead to societal breakdown eventually, but will more likely than not provide personal benefit in the short term, and the said societal breakdown will more likely than not occur after his death, and thus will bother him not? Why should he bother to refrain from activities that will lead to societal breakdown (like, e.g., trying to pass unicornish laws)?

WHY OUGHT we to strive to prevent the breakdown of society...?

I think this is a silly question. Why not ask, "WHY OUGHT we do anything at all?" This is why being a philosophy major severely tried my patience.

I confess that if you personally enjoy the breakdown of society and that if you also then stood to personally gain from the breakdown of society, I guess you would have some perfectly fine (if subjectively so) reasons to advocate for the breakdown of society.

As for myself, though, I feel like I have some moral responsibilities to others. (That's what being part of a society is all about, eh?) The responsibilities I feel I have are certainly different from the responsibilities others think they have, but I feel that I have them nonetheless. Why? Because I simply think it's wrong to hurt other people unnecessarily. That's a premise I start with, though, not something I arrive at through proof, so don't bother trying to disprove it.

Now, of course you could point out that were some societies that needed to be broken down (e.g., the obvious reference to Nazis), but debating about what constitutes a good society is wholly different from asking why we shouldn't just try and destroy 'society' in general... Which, again, is a silly question; I'm not interested in returning to the Stone Age and grunting at fellow men who pass me in the forest while I hunt, whether in the name of rabid individualism (which is what you seem to advocate) or anything else.