LA attorney advocates for church/state separation

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by Cynthia Price
Legal News

Edward Tabash may be an atheist, but he gives every indication that he is a lawyer first, and he takes his First Amendment seriously.

First Amendment religious clause interpretation issues abound; Tabash is able to slice some of them very finely.

But he quotes his church-state separation legal precedents as a Christian might cite chapter and verse of the Bible, and his knowledge of the subject is encyclopedic.
The Los Angeles attorney was in Grand Rapids last week to give a presentation for the West Michigan chapter of the Center for Inquiry (CFI), a national group, whose mission is “to foster a secular society based on science, reason, freedom of inquiry, and humanist values.”

It is extremely difficult to get accurate statistics about what percentage of the U.S. population might support such a mission, due to a muddling of terminology and therefore categories to choose. In general atheists and agnostics are thought to compose 1.5-18% of the U.S. population, and the “nonreligious” (including atheists and agnostics) from 13.2 to 24%.

There seems to be widespread agreement that the nonreligious population in this country is increasing, and one statistic on the Internet indicated that as much as 35% of those under 25 may class themselves that way. There has also been a lot of national media attention to “celebrity” atheists such as Richard Dawkins and Christopher Hitchens, as well as to recent findings by a Los Angeles Times poll that atheists as a whole beat out believers in knowledge about religion.

Tabash feels that none of those statistics are as important as the protections afforded by a sound reading of the U.S. Constitution.

The First Amendment, which starts off the Bill of Rights, reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...” The portion before the comma is regarded as the “establishment clause.”

Founding Father Thomas Jefferson famously wrote of the importance of maintaining a “wall of separation between church and state.”

The issue which interests Tabash most is whether First Amendment language should be construed to mean that the Constitution protects those who are without religion and/or belief, or that the government can favor the community of believers collectively without elevating any particular denomination or sect.

He advocates strongly that,  “Legal precedent is on the side of those of us who insist that government must be neutral in matters of religion, and that the non-believer is equal before the law.”

To demonstrate that, Tabash delves deeply into the intent of the Constitution’s authors.

He quoted Constitutional Convention member Daniel Carroll, — a staunch Catholic whose brother was an Archbishop — as saying when the First Amendment was under debate, “...the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand.”

In the same proceedings where Carroll’s opinion was recorded, James Madison was quoted as stating that “he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”
Madison is generally considered to be the principal author of the Constitution, in close consultation with Thomas Jefferson. Tabash says that he feels Madison’s intent was clear, based on his previous actions.

Madison and Jefferson worked for many years on passage of a freedom of religion bill in the Virginia Assembly, which Jefferson drafted.

As passed in1786, the bill reads, in part, “Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever...”

According to Tabash and others (see www.religioustolerance.org), an alternative proposal that would have merely expanded state recognition of the Anglican Church to recognizing other denominations was rejected.

Tabash says that for the most part, the highest courts of the land have agreed.

In the 1947 Everson v. Board of Education case, Justice Hugo Black of the U.S. Supreme Court gave the opinion  that the Establishment Clause meant “at least” that “...Neither [a state government nor a Federal government] can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.”

In Lee v. Weisman, Justice David Souter’s concurring opinion states most explicitly how people like Tabash interpret the first amendment.

Souter wrote, “Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others.” Souter summarized the history of the First Amendment and concluded: “The Framers repeatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for ‘religion’ in general.”

Another issue Tabash focuses on is the strongly “counter-majoritarian” nature of the Bill of Rights. Many people remain ignorant that one of the Bill of Rights’ intentions was to counteract the negative effects of majority rule on people who are in the minority.

Tabash states, “We live in a constitutional democracy and  the real aim of free religion and free speech is that the majority may not impose its will on the minority.”

One of the specifics Tabash cited is the case of same-sex marriage. He feels strongly that prohibition of homosexuals marrying is an infringement of church-state separation. “There is no organization actively trying to confine marriage to heterosexuals that is not religious-based,” he claims. On behalf of CFI and the Council for Secular Humanism, he entered an amicus brief before the California Supreme Court which aims to demonstrate just that — a brief which could serve as an excellent bibliography on separation of church and state and related legal issues.

The brief can be found on Tabash’s web site, www.tabash.com, which also features the banner “Atheism: as American as apple pie.”

Tabash also serves as chair of the national legal committee of Americans United for Separation of Church and State, where he works with many theists, staunchly upholding their right to freedom from oppression as well. He also believes that church-state separation should be supported by conservatives as strongly as by liberals, especially conservatives who prefer that government stay out of people’s personal affairs.

Tabash’s father was an orthodox rabbi, and his mother an Auschwitz survivor. He said he first began to struggle with religion as a little boy when he
considered how an allpowerful God could allow the Holocaust.

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