#11 February 20, 2012 Religion, Law, Liberty 427

Political Philosophers John Locke and Felix Frankfurter shared common views on separation of church and state. Both agreed that the two disciplines should be separate. While John Locke examined the balance of individual morality and government control, Frankfurter examined the limitations on religion and the scope of the Constitution. Locke formulated a set of rules that relate to the freedom of conscience they are as follows: Earthly judges, the state in particular, and human beings generally, cannot dependably evaluate the truth-claims of competing religious standpoints; Even if they could, enforcing a single "true religion" would not have the desired effect, because belief cannot be compelled by violence; Coercing religious uniformity would lead to more social disorder than allowing diversity. Frankfurter explained the flaws in judicial process, but that does not mean society should lose faith in the system. Also, each of the first ten amendments, Bill of Rights, have equal validity and are specific prohibitions in the eyes of the court.

In a Letter Concerning Toleration Lockes explains his views on separation of church and state. Locke believed that if the two were intangled then government would coerce religion or vice versa. Civil society precedes the state, both morally

and historically. Society creates order and grants the state legitimacy. Also, he dissects the Jewish faith and Christian faith comparing how the Jews allow their religion and government to be one and how that policy should not be implemented in our legislature. Congress shall make no law respecting the establishment of religion. Locke explains how the English Clergy persuades decisions of the council and is justification for the separation of church and state. The only important role of the state is to ensure that justice is done. Government should not violently oppress for example burning crosses. Authorization is meaningless, except that the authorization gives us reason to believe that the use of force is just. If authorization does not give us such confidence, perhaps because the state itself is a party to the dispute, or because of past lawless acts and abuses by the state, then we are back in a state of nature. (Locke) The government is charged with the duty to maintain public order and to protect against potential threats against government within the rights guaranteed by the Bill of Rights. No Opinions contrary to human society, or to those moral Rules which are necessary to the preservation of Civil Society, are to be tolerated by the Magistrate.(49 Locke)

The Government has a compelling interest to protect against factions and groupthink. According to Locke, Another more secret Evil, but more dangerous to the Commonwealth, is, when men arrogate to themselves, and to those of their own Sect, some peculiar Prerogative, covered over with a specious shew of deceitful words, but in effect opposite to the Civil Right of the Community. (49 Locke) History provides us with examples of how dangerous the ideology of a group can be

for example African Americans battles for equality against the Jim Crow South in the Civil Rights movement of the 1960s. Another example is the mass Genocide of Jews conducted by Germans during the Holocaust. The Government should not have total control or situations will arise similar to the ones in England with the passing of legislation that will prohibit gathering to worship. The Conventicle Act of 1664 did just that, England claimed that the bill protected government, but it revealed a fear of religion. This is a prime example of Lockes fear Government coercicion of Religion. Conventicles, and Nurseries of Factions and Seditions, are thought to afford the strongest matter of Objection against this Doctrine of Toleration.(51 Locke)

The establishment of religion does not protect against legislation is the premise of Frankfurters dissent in West Virginia State Board of Education v. Barnette. He explains how the viewpoints of the minority should be protected against the majority and this right is guaranteed by the constitution. The constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to law because of religious dogma. Religious loyalties may be exercised without hindrance from the state, not the state may not exercise that which except by leave of religious loyalties is within the domain of temporal power. Other wise each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws. (653 Felix) Frankfurter believes Government has a compelling interest to

legislate actions of citizens. If citizens can shield themselves behind religion, what will stop them from objecting whatever they deem irreligious. The religious worshiper, if his liberties were to be thus extended, might refuse to contribute taxes.in furtherance of any other end condemned by his conscience as irreligious or immoral. (657 Felix)

Frankfurter acknowledges the theory freedom of conscience and cites it as a fundamental right. But he does not submit the right of legislature to decided what actions are nullified or valid. He may practice what he will in his own house of worship or publicy within the limits of public order. But the lawmaking authority is not circumscribed by the variety of religious beliefs, otherwise the constitutional guaranty would be not s protection of the free exercise of religion but a denial of the exercise of legislation. (654 Felix) This is an example of legislations conundrum to balance the ideals of the majority v. the rights of an individual. A fear of Frankfurter is the idea that one can be mislead or coerced into a religion based on one certain belief. He explains the fact that there are so many denominations in Christianity that it is dangerous for legislation to allow provision for religion. Otherwise the doctrine of separation of church and state, so cardinal in the history of this nation and for the liberty of our people, would mean not disestablishment of a state but the establishment of all churches and of all religious groups. (655 Felix)

As stated I stated earlier, Locke and Frankfurter both agreed on the separation of church and state. While Lockes focused the balance of individual morality and government control, Frankfurter examined the limitations on religion and the scope of the Constitution. Both philosophers fear the coercion of government on religion or vice versa. Locke did not support any government abuse against religion stating the only action that can be taking by the church is to ostracize an individual for their wrongdoings. While Frankfurter did not believe one could shield behind religion from legislation. Locke and Frankfurter supported Civil Rights and the idea of individuals right to privacy. They concur on the fact that government should supply the needs of the govern, but differ on the actions the govern should take when unhappy. Locke, the anarchist, believes in the right to overthrow government, when displeased with decisions. (Federalist Papers) While Frankfurter, the nationalist, does not believe the government can force a person to believe in patriotism, but believes educating one on citizenship should be granted by legislation. Lockes theory on natural law and fundamental rights interpreted by the judiciary is opposite of Frankfurter. Locke supported the courts interpretation of fundamental law, but did not want the courts to regulate what was morally right or wrong. Frankfurter did not believe in the theory of incorporation. In many cases stating that it is not the federal governments right to limit state powers. Frankfurter believed in judicial restraint, the view that courts should not interpret the fundamental law, in such a way as to impose sharp limits upon the authority of the legislative and executive branches.

When analyzing the court decisions of U.S. V. Reynolds, West Virginia Board of Education V. Barnette and Maynard V. Wooely considering the philosophies of Locke and Frankfurter I believe the two would have agreed on two cases and disagreed on the other. Factors for me assumptions are the level of scrutiny in each case for example the rational basis test was used in these three cases. In the case of U.S. V. Reynolds considering the states compelling interest in protecting the public from harm both would agree that Reynolds violated the SORNA rule. In the case of West Virginia Board of Education V. Barnette the two would have agreed, but for different reasons. Locke would have dissented examining the fact that the kids are being coerced into placing patriotism above their religions convictions. For it does not unto the Magistrate to make use of his Sword in punishing every thing, indifferently, that he takes to be a sin against God. Covetousness, Uncharitableness, Idleness, and many other things are sins, by the consent of all men, which yet no man ever said were to be punished by the Magistrate. The reason is, because they are not prejudicial to other mens Rights, nor do they break publick Peace of Societies. Nay, even the sins of Lying and Perjury, are no where punishable by Laws; unless in certain cases, in which the real Turpitude of the thing, and the offence against God, are not considered, but only the Injury done unto mens Neighbours, and to the Commonwealth. (44 Locke) Frankfurter dissents with his theory that Federal government cannot dictate what State government can and cannot limit. Is it really a fair construction of such a fundamental concept as the right freely to exercise ones religion that a state cannot choose to require all children who attend public school to make the same gesture of allegiance to the symbol of our national life because it

may offend the conscience of some children, but that it may compel all children to attend public school to listen to the King James version although it may offend the consciences of their parents? And what of the larger issue of claiming immunity from obedience to a general civil regulation that has a reasonable relation to a public purpose within the general competence of the state? (661 Felix) When analyzing Frankfurters dissent one must factor in the political aspects of the time, the country was facing World War II and the red scare with the threat of communism spreading. So the idea of national unity was needed in the United States and the flag salute represented a symbol of unity. Frankfurter believed that if students were not required to salute the flag then their loyalty to the nation would reduce.

In conclusion Locke and Frankfurter were separated by centuries, but both contributed to legislation we use today. Lockes views on fundamental rights and natural law are precedent for civil cases. Although Frankfurters views on incorporation is not good law, due to the 14th Amendment his views are still analized in the courtroom and classroom. The two philosophers examined issues of their time both supporting the separation of church and state fearing coercion of one over the other. Also, both shared a common view of individual liberty to privacy, which is not expressly written into the constitution.