“Not, in any sense… Christian”: The Treaty of Tripoli and our Secularist Founders
Religious folks demand tolerance and, indeed, a free society should require tolerance and enforce laws to protect the free worship of religion. However, many religious people are intolerant of persons they feel violate the religious edicts of their faith. For example, Mormons provided 40% of the funding for Proposition 8 in California. That initiative, which put the right of same sex adult couples to enter into a legally recognized marriage in the state to a vote, passed, thus making a sizable portion of the tax-paying public second-class citizens. The religious people who put this odious initiative on the ballot do so not out of political conviction, but out of religious conviction. Their interpretation of their faith views homosexuality as sin and the marriage between homosexual couples as against their god’s law. Therefore, they do not tolerate gay marriage.
That a religion is intolerant of a human activity is not itself a problem. I do not tolerate engaging in superstations and irrational thought, and it is none of my business if someone else does. Just at it is none of my business if someone wants to take recreational drugs, or vote Republican, or live in a purple house. I read the Bill of Rights as essentially saying “follow your bliss… but leave others alone.” Sadly, the Mormon’s who funded and campaigned for Prop 8 do not feel this way. They do not want to simply live their lives, they also want to control what other people do. So in this instance, intolerance generates legislation and keeps adults from entering into legal contracts with each other.
Likewise, many Muslim Americans rightly feel that they are oppressed by an intolerant majority population, especially since the attacks of 9/11. The sense of siege that many Muslims must feel joins in common-cause with the oppression experienced by the Palestinian population in Israel and those living under exploitive regimes elsewhere. For non-rational people of the Islamic faith, it must seem that they are getting it from all sides, and the same exploitive regimes (Iran, Syria, Pakistan, etc.) that can’t be bothered to sincerely generate a civil society governed by secular laws, are only too happy to distract their citizens and, feigning common feeling, attack Dutch cartoons, Anglo-Indian novelists, and the cinema of Mickey Rourke. This has had the knock-on effect of spurring the sentiments of the worst kind of liberal placatory instincts in the UN and in Canterbury. Not to mention the parallel desire of many school boards to add “balance” to science classes by giving equal time to evolution and creationism so as to not offend the delicate sensibilities of evangelical Christians. It is like a race to see who can dislocate the vertebrae the farthest to bend over backwards for the fanatics. Will it be the boosters of radical Islam, the amen chorus of the pro-Israel lobby, or the apologists for fundamentalist Christianity?
What response is adequate to this? Were it just a matter of public debate, the law need never intervene. But at some point in our history we decided that religion needs to have a “voice” in secular government. The constitution is less explicit about the separation between church and state in Article 6, simply stating that the US would not administer a religious “test” for appointment to office. But unlike the Second Amendment, we do have contemporary commentary which would seem to bolster the separation argument. Take for example these words from the Treaty of Tripoli which ended the conflict between the newly-minted American nation and the Barbary states:
As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
In other words, we are not a Christian nation, and therefore have no beef with Muslim nations. Adding the prepositional “not, in any sense” suggests that presumably all sects and offshoots of Christianity, including the LDS, would be included in the broader definition of “not [being] founded on.” Our laws are secular laws based on principles of rationalism, utility, and liberty. This is why public schools must not permit prayer and why laws governing state recognition of marriage must not be founded on religious principle. They must not, because they cannot. If we must make appeals to history and heritage, then we should note that our vaunted “Founding Fathers” were products of the Enlightenment, a decidedly secular movement.
One might note this piece of early Federal American prose is a good deal less ambiguous than the Second Amendment. The ambiguity there may be been purposeful in that instance just as the un-ambiguity of the Treaty is here. The wording of the Second Amendment addresses the fluid, changeable nature of national indemnity and culture, whereas the Treaty addresses the immediate nature of the Barbary crisis. If we are looking to read the minds of the Founders, to get at their intentions, then we should look first look at all of the documents of that era (and I would consider the Treaty to be a founding document insofar as it is a product of one of the earliest post-independence crises) and assess what the preponderance of thought was during that time in our history. Between the practical ambiguity of the First Amendment’s “establishment clause” – which, after all, limits religion’s reach in government affairs - and the crystal-clear wording of the Treaty of Tripoli – which tells a foreign nature how they should consider us, the new kids on the diplomatic block, going forward – it should not be a stretch to find a consensus of secularist thought at work in the new nation.