When Scott Roeder argued that he was justified in killing Dr. George Tiller at a Wichita church, the defense was not his own invention. Claims that one’s religion supersedes civil law – sometimes argued under the Free Exercise Clause of the First Amendment – have a long and often ugly history. (More)

The Party of Null, Part II – Theocracy over Democracy

This week Morning Feature considers the modern nullification movement, which denies the popular sovereignty of “We the People,” at least when they lose elections. Yesterday we examined their arguments of government “at war” with “free markets.” Today we look at claims of government “suppressing” religion by not enacting religious doctrine as law. Tomorrow we consider how progressives can discuss this with Fred, our archetypal median voter.

Most of us were horrified and outraged when anti-abortion activist Scott Roeder murdered Dr. George Tiller. But not all of us. Donald Spitz, who runs the website of the anti-abortion group Army of God, claimed that Roeder’s act was justified under a higher law: religion. It is an argument with a long and often ugly history.

The Myth of the Mayflower.

As children we were taught many myths about our nation’s history. Some were harmless tall tales created to forge a national identity, like the myth of George Washington and the cherry tree. Others were self-serving revisions, like the myth of Pilgrims coming on the Mayflower to escape religious oppression. The reality is that they wanted to be religious oppressors.

While the 1559 Act of Uniformity required all Englishmen to attend the Church of England and forbade other religious practices, the Pilgrims escaped that by moving to the Netherlands in 1607 and 1608. Originally settling in Amsterdam, the group split over the doctrine of baptism and those who eventually became the Pilgrims settled in the village of Leiden in 1609. Holland was a pluralistic society, and the Pilgrims were free to practice their faith. But many believed Holland was too liberal, and the Dutch rejected their efforts to see their doctrine enacted in local law. That and other issues – such as retaining their English culture – led them to seek a new land where they could found a society on their religious beliefs.

Establishment or Free Exercise?

The tension between the freedom to practice one’s religion and the demand that society be based on one’s religion predates the dawn of our nation. It is built into evangelical religions that exhort followers to convert others and has inspired some of history’s cruelest acts. When racism and/or sexism are part of an evangelical belief system, the risk of cruelty multiplies.

The Framers acknowledged that tension in the two religion clauses of the First Amendment. The Establishment Clause forbade laws “respecting an establishment of religion,” while the Free Exercise Clause forbade laws “prohibiting the free exercise thereof.” The Establishment Clause has been interpreted to forbid not only official religions de jure (laws designating an official religion), but acts of government that create an official religion de facto (such as compulsory prayer in public schools). The Free Exercise Clause requires a balancing test – lest freedom of religion be claimed to justify human sacrifice, for example – and the courts have held that government must show a compelling interest to restrict religious practices.

But what if one’s religious beliefs require restructuring society around them, or reject the legitimacy of civil law unless it conforms to doctrine? The Free Exercise and Free Speech clauses clearly allow persons of faith to advocate for laws that fit their beliefs, but what if “We the People” – exercising popular sovereignty through our elected representatives – choose not to enact those laws?

A Tale of Two Murders.

On February 7th, 2005, 23-year-old Hatin Sürücü was shot three times in the head while waiting for a bus in Berlin. Hers had been a troubled life. At age 16, her parents in Germany sent her to their native Turkey, where she was forced to marry a cousin. Three years later, in 1999, she gave birth to a son. Later that year she fled her parents home in Berlin and lived in a home for underage mothers. She eventually moved into her own apartment in Berlin, raising her son and learning to be an electrician. She had nearly finished that training when she was murdered, by her brother. It was, he claimed, an “honor killing” justified under the Islamic law of sharia because her sin of leaving her arranged marriage stained the entire family.

On May 31, 2009, Dr. George Tiller was shot in the head while handing out bulletins at his church in Wichita, Kansas. His had also been a difficult life. A former Navy flight surgeon, he had planned to open a dermatology practice after leaving the military. Then his parents, sister, and brother-in-law were killed in a plane crash. In her will, his sister asked him to care for her young son. Dr. Tiller’s father, a doctor in Wichita, had performed abortions as part of his family practice. Dr. Tiller had hoped and at first planned to open a dermatology practice, but after reading the story of a young woman who died after an illegal abortion, he chose to take over his father’s family practice. That placed him in the crosshairs – literally – of groups like the Army of God, and on August 19, 1993 Shelley Shannon opened fire outside his clinic, wounding him five times. He was also targeted by TV talk show host Bill O’Reilly, who called him “Tiller the Baby Killer” and mentioned him in 28 episodes from 2005-2009, and by a local prosecutor, though he was never convicted of a crime. Scott Roeder, like Ayhan Sürücü in Germany, claimed the killing was justified by religion.

In Wichita, as in Berlin, the courts disagreed. Ayhan Sürücü was convicted of murder and sentenced to nine years in prison, though his conviction was reversed on appeal. He awaits retrial. Scott Roeder was convicted of murder and, on April 10, 2010, was sentenced to life without parole for 50 years.

Those who believe in popular sovereignty under civil law, established by “We the People” through our elected officials, call that “justice.” Those who believe in the private sovereignty of ecclesiastical law, established by imams or preachers, call that “tyranny.”

The Establishment and Free Exercise clauses express and propose to resolve the tension between theocracy and democracy. But the tension remains.

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Happy Friday!