It’s understandable that many religious Americans, particularly those who are not very concerned about church-state separation, would be fond of governmental God-language. When, in the 1950s, the words “under God” were added to the Pledge of Allegiance and “In God We Trust” was made the national motto, religious groups spearheaded those efforts. Nowadays, religious activists are encouraging cities and counties across the country to post “In God We Trust” on public buildings and other public places, such as police cruisers. With such religious messaging validating the theological views of believers—and even connecting those views with a patriotic sentiment of sorts—it's no surprise that believers often look upon it favorably.
Still, such unambiguous theological assertions—that a community or a police department trusts in God or is "under God"—raise obvious constitutional questions. If government is supposed to be neutral on religion, should it really be promoting belief in God, let alone trust in God? Religious conservatives, realizing that they must address such concerns, have carefully crafted their arguments for governmental God-language. Thus, they insist that “In God We Trust” and “under God” should be understood not as promoting God-belief, but simply as acknowledging that our rights come from God. This statement is often followed by the claim that, since God gave us our rights, the government cannot take them away.
These are weighty claims, and they have an appeal even to many who aren’t particularly religious. After all, it’s nice to have a philosophical basis for the view that government can’t deny our God-given rights. Unfortunately, however, the entire argument falls apart under scrutiny, and in fact it can more accurately be understood as a disingenuous attempt to promote religion while doing nothing to explain or secure anyone’s rights.
First let’s consider the claim that "our rights come from God." Since even believers will acknowledge that the very existence of God cannot be proven, this claim leaves us in a most unsettling position: our most precious rights are apparently flowing from an entity whose existence can reasonably be doubted. Even believers acknowledge that faith, as opposed to verifiable evidence, is the basis of their belief. That's fine for one's personal religious outlook, but why would we feel that cherished human rights and civil rights are more secure if they arise from a source that may not even exist?
Moreover, despite the religious rhetoric, the sobering reality is that the legal existence of rights requires not a deity, but human political action. Without the framers creating the Bill of Rights and etching them into law, fundamental freedoms such as free speech, religious freedom, due process, etc., would not exist. Credit God for rights if you wish, pontificate all you want about their heavenly origins, but only human action can make liberty real.
Even more absurd is the claim that the government can’t take away our rights. Wishful thinking! Of course it can. On the constitutional level the framers even created a mechanism for doing so—it's called the amendment process. Any constitutional right—free speech, free press, due process, etc.—could be eliminated by constitutional amendment. To be more specific, a vote of two-third of both houses of Congress and three-fourths of the state legislatures can repeal any constitutional right. However unlikely it may seem, all of our "God-given" rights are ultimately vulnerable to governmental action. Only the will of the people that protects them.
And don’t think for a second that Americans so cherish their constitutional rights that they would never allow them to be denied. Particularly when an unpopular group is targeted, the denial of rights often has been politically expedient and acceptable to the majority. The internment of Japanese Americans during World War II is an easy example, as are the Palmer raids in the early twentieth century. Consider the denial of basic rights to African Americans during Jim Crow, and of course their continued mistreatment at the hands of official authority today. And don’t forget the Patriot Act, which redefined government power and citizen rights in the aftermath of 9/11. One could argue that such restrictions were necessary—we need not go there in this article—but the point is that in all these instances government took rights away.
Indeed, as any law student knows, even without constitutional amendment or hostility toward minority groups, there are well-established legal rules that tell us exactly when government can take away rights. Under the “strict scrutiny” standard, the courts will uphold laws infringing on fundamental constitutional rights if the government can show that the law is (1) needed to further a compelling interest and (2) narrowly tailored to infringe on rights in the least restrictive manner possible. In other words, government can definitely take away your rights whenever it (via its courts) says it really needs to do so.
So much for "our rights come from God, and that means government can't take them away." In real life, of course, those making such statements (for example, former Alabama Chief Justice Roy Moore) are rarely those whom we associate with the ardent defense of rights. What we find is that the entire argument is intended not as a defense of human rights or civil rights at all, but as a means of promoting the religious and social-political views of those who assert it. With God-language promoted most zealously by Bible-belt communities and groups such as the Congressional Prayer Caucus, which is dominated by socially conservative lawmakers who, like Roy Moore, are rarely seen as defenders of civil rights, it becomes clear that "rights" have little to do with it.
Nevertheless, the origin-of-rights issue, and its actual importance to the founding generation, is worth considering. The statement in the Declaration of Independence that humans are "endowed by their Creator with certain unalienable Rights" is the cornerstone of the argument for God-language in government. Careful consideration of the language makes it clear that it hardly justifies the regular assertion of religious truth claims by government today.
First of all, the Declaration of Independence was making a bold and ambitious argument—to a king who claimed power by divine right—that the colonists' demand for independence was legitimate. There's no better way to cut ties with a monarch who claims God’s blessing than with a divine reference of one’s own. Grandiose language would be expected for the serious business of colonists rebelling against an empire.
This, however, is hardly a basis for supporting the recent emphasis on God-language in American public life, especially considering the fact that the Constitution and the Bill of Rights—the foundational law of the land, drafted about a decade after the Declaration—make no mention of God. The ultimate source of authority is contained in the Constitution's preamble: "We the people."
Moreover, understood in context, the Declaration of Independence hardly states that government cannot take away rights. With its long laundry list of grievances, it can best be understood as an assertion that people can and will take quite a bit of grief from their government, but that they will eventually rebel when oppression becomes intolerable. The Declaration is not an idealistic philosophical statement of rights and obligations, but an expression of pragmatism, basically saying that reasonable men can only take so much: Your Majesty, you pushed us too far. Good-bye.
As principled individuals, many of us like to walk around believing that our rights come from God and that no government could ever take them away. A nice thought, perhaps, but the truth is that human progress developed the concept of rights that we appreciate today. There is not even the slimmest of evidence that God had anything to do with it.
In fact, secular, humanistic views of rights have been put forth by modern scholars, and they are no less profound than religious views. Harvard's Alan Dershowitz, for example, argues that most rights we value today were invented by people in an effort to shape the human experience into something better, usually to protect from oppression and hostility that were seen as undesirable.
Most importantly, recognition that rights were invented by humans leads to the logical (and accurate) conclusion that only humans can protect them. If one actually believes that God bestows rights—that rights exist because some divine force wants us to have them—there can be a naive tendency to believe that God will ultimately protect them, that surely rights will not be lost if the Supreme Being is their source.
Rather than rely on God (or for that matter God's most visible public advocates, such as Bible-belt sheriffs or the Congressional Prayer Caucus) to defend rights, those who truly value freedom should realize that the defense of rights belongs with their real source: rational, compassionate, engaged, and vigilant human beings.
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