How America was not founded as 'a Christian country' based on 'Judeo-Christian' values

A common rallying cry of the right in America, to justify regressive morality laws, is often to say that "America was founded as a Christian country" with "Judeo-Christian values" while the common response from the left is to declare that the United States was founded as an explicitly secular country with a separation of church and state.

Would it surprise you to learn both are wrong?

First of all, "Judeo-Christian values" is a dog whistle that erases Jewish values by subsuming Judaism into Christianity. It also excludes other religions, particularly Islam. When politicians claim "Judeo-Christian values" they're almost always describing Christian values but want to pretend they are being inclusive of Jews.

Initially, in the 19th century the phrase referred to Jewish people who converted to Christianity. It wasn't intended to be inclusive of Jews at all. The current meaning of the term was an invention of American politics in the 1930s, as a phrase to show opposition to Hitler and communism. "Judeo-Christian values" is often used by politicians to proclaim common opposition to atheism, abortion and LGBT issues.

Basically, there's no such thing as a "Judeo-Christian values."

Except Judaism and Christianity don't have a common value system on those issues. While it is hard to declare a universal Jewish value—there are many sects of Judaism and one of our core tenets is argument—most Jewish rabbis acknowledge that abortion should be allowed at least in certain circumstances. Jewish law dictates that life begins at first breath, not conception. Additionally, many Jews consider themselves atheists and consider Jewish practice to be through behavior and attitude, not belief. Unfortunately the acceptance of LGBT people in Judaism is more complicated, depending on the sect, but Reform and Conservative Judaism are publicly accepting of LGBT people. Basically, there's no such thing as a "Judeo-Christian values."

The United States was founded with an attempt at secularism as well as freedom of religion. As opposed to monarchies, democracies in general are less Christian-based, as rulers are not justified on the "divine right of kings." Practically, "freedom of religion" often meant the freedom to practice whichever sect of Christianity, or sometimes even Protestantism, a person chose. Considering a number of colonies were founded based on disagreements over which Protestant sect was "correct," even this level of legally inscribed religious freedom was progressive for the late 18th century.

However, when considering religious freedom in early America, we must look beyond federal law and beyond the Bill of Rights. The Bill of Rights was not applied to the states, except to declare the citizenship of formerly enslaved people, until the Incorporation Doctrine was applied to incorporate the Bill of Rights to the states through the Due Process Clause of the 14th Amendment. This doctrine has been traced to Gitlow v. New York in 1925, when the Supreme Court held that states were required to protect freedom of speech, partially incorporating the First Amendment.

The relevant text of the First Amendment states that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This text is meant to prevent an established state religion but also to protect religious practice from government interference. While protection from a theocracy is important, it is hard to argue that this text is meant to enforce secularism. Additionally, the phrase "separation of church and state" is actually paraphrased from a letter written by Thomas Jefferson in 1802. It was not interpreted as part of the intent of the First Amendment until Reynolds v. United States in 1878.

It's tempting to push back by declaring the United States was founded as a secular country. Unfortunately, that claim would ignore a long history of the privileging of Christianity.

Most early colonies supported religious action with taxes. Many established state religions. While some disestablished with early state constitutions, Connecticut, New Hampshire, Massachusetts, Maryland, Rhode Island and North Carolina didn't. The Massachusetts Constitution limited office to Protestants until 1821. Non-Protestants couldn't hold office in New Hampshire until 1876.1 Maryland, Rhode Island, North Carolina and New Hampshire did not allow non-Christian voting until well into the 19th century when the franchise expanded in 1826, 1842, 1868, and 1877, respectively.2

At the federal level, religion became relevant to citizenship when coupled with questions of "whiteness." Naturalization required an immigrant be "white" or of African descent after the Civil War until 1952. This requirement led to a number of cases, dubbed "prerequisite cases," brought by immigrants to prove their "whiteness." One consideration for the courts was the "racial performance" of immigrants to determine how successfully they would assimilate. Courts often used an immigrant's lack of Christianity as a detriment to assimilation and therefore to whiteness.

There were also forms of state-sponsored discrimination against non-Christians that did not require explicit privileging of Christianity over other religions. Consider the ubiquity of "Sunday Laws," which prohibited people from working Sundays. Jews had to work on the sabbath (Saturday), lose two days of work over the weekend or risk prosecution. These laws resurged in 1880s New York with the arrival of more Jews.3

Non-Christians, particularly Jews, faced discrimination in court. Courts often required people to appear on Saturdays and would forbid a "religious exemption" for Jews.4 Many also considered a belief in Jesus Christ as a requisite for swearability on the witness stand. Not until 1857 did a New York court ruled a Jewish witness must be sworn to testify according to the "peculiar ceremonies of his religion," specifically a Hebrew Bible and with his head covered.5 Jewish witnesses got legal protections in 1871. A Jewish plaintiff was questioned about his belief in Jesus Christ to impeach his honor under oath in a property dispute. When appealed, a Georgia court said a "want of belief in Jesus Christ as the Saviour" was not grounds for exclusion of a witness, and that while some courts have used a belief in Jesus as necessary to render a witness competent, the court clearly ruled that "a Jew is competent at common law."6

It's tempting to push back against politicians justifying their regressive morality laws by way of the "Judeo-Christian values" of the founding. It's tempting to push back by simply pointing to the First Amendment and declaring the United States was always founded as a secular country. Unfortunately, that claim would ignore a long history of discrimination against minority religions and the privileging of Christianity.

In order to fight for a truly religiously inclusive society, we must acknowledge the ways in which Christianity is embedded in the laws and culture of our society. Luckily the founders provided the First Amendment, an important tool in this fight.

There was a brief time when civil courts could force cops to pay damages -- then SCOTUS stepped in

Ex-cop Derek Chauvin was convicted this week of murdering George Floyd, marking the first time a white police officer has been convicted in the death of a Black person in the history of Minnesota, and the second time a police officer had been convicted of killing a civilian in the state. While the verdict was a victory, it will do very little to curb police brutality or systemic racism in policing without serious reforms in policing training and legal accountability. Even in this trial, Chauvin was presented as an outlier cop who violated procedure, rather than as an officer with many excessive-force complaints in his history, who had been protected by the system for years.

One of the biggest impediments to police accountability for killing civilians is the legal doctrine known as qualified immunity. Qualified immunity shields police officers from civil lawsuits brought by the public to protect government officials who make "reasonable" mistakes. This means that people who have had their civil rights violated by police officers cannot sue and they must rely on disciplinary action by the police department or the prosecutor bringing charges to hold officers accountable.

While civil lawsuits can only provide financial accountability, they could be an important tool in changing the culture around policing. Individual police officers might think twice about their actions if they thought their own money was on the line. Additionally lawsuits bring press attention that would likely be unwanted by police departments. Civilians must have their own mechanism for holding police officers accountable and cannot be forced to rely on systems set up to protect police.

The right for civilians to bring lawsuits against public officials who violate constitutional rights dates to the passage of the Civil Rights Act, aka the Enforcement Act, of 1871. Initially passed to fight the Ku Klux Klan, the law empowered the president to suspend habeas corpus, a writ to challenge why someone is being imprisoned, to combat the KKK. In 1961, in Monroe v. Pape, the Supreme Court held that Section 1, now amended and codified as 42 USC § 1983, known as Section 1983, could be used to sue state officers who violated a person's constitutional rights.

In that case, 13 Chicago cops broke into the Monroe home without a warrant, ransacked it and made Monroe and his wife stand naked in the living room before taking Monroe to the police station to interrogate him for 10 hours about a murder. Monroe brought suit against each officer as well as the city under the 1871 Civil Rights Act. While dismissed by the District Court and the Court of Appeals, because the officers were performing government functions, the Supreme Court disagreed with respect to the officers but dismissed the case against the city. The court held that the purpose of the 1871 Civil Rights Act was "to give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official's abuse of his position."

While Monroe remains important precedent, a 1967 case weakened it with respect to police officers by creating the legal doctrine of "qualified immunity." Pierson v. Ray was a case coming out of desegregation efforts in the South. It involved the arrest of 15 Episcopal priests, 12 white and three Black, who tried going to a coffee shop in Jackson, Mississippi, while participating in the Mississippi Freedom Rides in 1961.

The priests were arrested for "breach of peace" after refusing to leave the coffee shop after being ordered to. They were each sentenced to four months in jail and a $200 fine. Represented by the Congress of Racial Equality, they sued for damages against the local judge and police under Section 1983, claiming false arrest and imprisonment.

While the 5th Circuit Court of Appeals found the Mississippi "breach of peace" law allowing the police to arrest the priests unconstitutional, it did not hold them liable, because they could not be expected to know which laws were constitutional or not. Additionally the appeals court ruled the judge was immune from prosecution.

While the Supreme Court ruled a new trial was warranted, it held that while police officers did not have "unqualified immunity," they may be excused "from liability for acting under a statute they reasonably believed to be valid but that was later held unconstitutional, on its face or as applied"—in other words, "qualified immunity."

While this was meant to be a small exception carved out for officers who acted in "good faith," the doctrine was greatly expanded in 1982 with Harlow v. Fitzgerald. After Harlow, police officers were generally shielded from civil liability, even if acting in bad faith, unless plaintiffs could show the officer violated a "clearly established" right that a "reasonable person" would know. The burden of proof therefore was moved to the shoulders of the plaintiff and "reasonableness" became an issue. Additionally plaintiffs were required to show a legal precedent involving the "specific context" and "particular conduct" at issue. Otherwise, the officers were shielded from liability. Bottom line? This is rarely achieved. The result? Cops act like they can do no wrong.

Ending qualified immunity is a necessary step in empowering civilians and holding police officers accountable for their violence. The United States House of Representatives has passed the George Floyd Justice in Policing Act, which would end qualified immunity. The act would also ban chokeholds, no-knock warrants in federal drug cases, create a nationwide database of police misconduct, prohibit racial and religious profiling, and redirect funds to community-based policing programs.

While the bill would be an important step in police reform, Republicans in the United States Senate are blocking it with a competing bill that is not as strong. Qualified immunity was created in an attempt to protect police officers during segregation and continuing its use only serves to perpetuate systemic racism and violent policing.

The history that went into killing 13-year-old Adam Toledo

Adam Toledo, 13, is one of about 1,000 people every year who are killed by police officers. Video of the incident was released reluctantly Thursday by the Chicago Police Department. It shows a cop, who is white, shooting Toledo once in the chest after the Hispanic youngster obeyed his commands by dropping his gun and raising his hands. People are still arguing about whether Toledo's death was justified. (It wasn't.) There is no argument, however, about its place in the racist history of policing in America.

Of the 6,211 people killed by police since 2015, about 10 percent were unarmed. Over half were not attempting to flee. While white Americans account for nearly half, Black people, men as well as women, are killed at almost twice the rate of white people. Native Americans and Latino men also face a higher risk of being killed by police than white people. Alternatively, 295 officers were killed in the line of duty last year. The average death toll for police for the last six years was 190, making the public more in danger from police officers than police officers were in danger from the public.

Policing has violent racist origins in all parts of the US. Rather than tools of justice and peacekeeping, police forces have historically acted as state-sanctioned vigilantes or to support truly extralegal violence.

While there has been increased interest in police brutality in the last decade, racist police violence and police brutality dates back to the inception of police forces in this country. The first modern organized force in the United States was the New York City Police Department in 1845 with New Orleans, Cincinnati, Boston, Philadelphia, Chicago and Baltimore following soon after. Urban police forces were encouraged by nativist anti-immigrant concerns and capitalist desires to protect private property.

By 1860, the NYPD was deeply involved in partisan politics, corruption and ethnic resentments, even among Irish and German immigrants who had made inroads into the department. This corruption and politicization of policing and criminal punishment encouraged officers to mete out their own "curbside" justice in the form of beatings rather than arrests. Irish Protestants were more likely to support Republicans, leading to a violent police response to the Catholic Irish protests of Republican Irish parades in 1870-1871. Unfortunately, police brutality did not lessen after 1870 when the police department was once again controlled by Democrats.1

By 1865, the press started reporting on police brutality and complaints made by citizens. Between 1865 and 1894, the Times reported more than 270 cases. Three quarters of these involved an officer clubbing a suspect, usually unarmed, with a baton or nightstick. Wrongful shooting accounted for 7 percent of incidents. Almost 10 percent of victims died. While most police violence was committed against men, 20 percent was against women and 4 percent of reported incidents were sexual assault.2

Police brutality was racialized even at the beginning of police force history. While 68 percent of victims were English/Scottish or Irish, that ethnic group accounted for 91 percent of the police committing the violence, with Irish officers committing a full 50 percent of police brutality incidents, despite being only 22 percent of the police force. About 15 percent of incidents were committed against Jews, Black Americans and Italian immigrants, who had virtually no representation in the police department.3

Police violence became more racialized after the turn of the century. Predominantly Irish police officers joined violent white crowds in attacking Black people, Jews and other immigrants in the early 20th century. Riots in 1900 and 1903 led to police violence against Black Americans in New York's Tenderloin district and the city's old San Juan Hill neighborhood's, respectively. A virtual pogrom broke out during the Hoe Riot when Irish cops joined Irish workers on the Lower East Side in violence against a Jewish funeral march. This legal racist violence by police became a method of assimilation and whiteness for many Irish immigrants. Police forces continued to protect capitalist interests by committing violence as strikebreakers as well as serve nativist political concerns by enforcing increasingly racist immigration laws.

Before organized police departments in the North, some colonial governments appointed constables to protect the community from Native Americans. Some communities also created night watches or used the local militia to protect citizens from outside threats, not to police the behavior of citizens. Policing in the South developed to enforce the slave system and protect against slave rebellions rather than to provide public safety. The first slave patrol was formed in South Carolina in 1704, but soon spread throughout the colonies and lasted until the Civil War in Southern states. Slave patrols were meant to return runaway slaves, deter slave revolts and maintain some discipline among slaves who might violate plantation rules. Slave patrols supported a vigilante style of policing that continued after the Civil War. Vigilance committees formed in the West to police the frontier and were often sanctioned by governments. Slave patrols also contributed to Jim Crow and segregation policing that led to lynchings that went unchecked by governments.

Policing has violent racist origins in all parts of the United States. Rather than general public safety and law enforcement, police departments were created to enforce racial boundaries and the political concerns of white supremacy. Rather than tools of justice and peacekeeping, police forces have historically acted as state-sanctioned vigilantes or to support truly extralegal violence. Most of us think police were created to deal with rising crime and urbanization, but they always served the needs of the white elite to protect property with violence and enact their own racist animus. Government-sanctioned police brutality is embedded in our policing structures. You should know about this history. It's what powered the bullet that flew into Adam Toledo's chest.

Mandatory vaccination is American as apple pie — and as old as the Revolution

With a large portion of the country getting vaccinated, we are finally seeing light at the end of the tunnel. To protect public health, certain activities will obviously require people to be vaccinated, a kind of policy that has existed in some form or another since the American Revolution. Despite the longstanding established practice, the idea of a "vaccine passport" has people making bizarre comparisons to the Holocaust and tyrannical governments. It is common practice for people to provide their vaccination records in order to go to school, have certain jobs and travel to certain countries. The concept of a "vaccine passport" is just to streamline this process and make it easier for people to show proof of their COVID-19 vaccination. If one doesn't want to get vaccinated, they might just have to forgo participating in certain activities.

Compulsory vaccination laws are justified legally based on the state's compelling interest in protecting the health and welfare of the population. It is common to restrain a little individual liberty in order to protect the safety of the larger society. Consider the Oliver Wendell Holmes quote, "The right to swing my fist ends where the other man's nose begins." Our liberty must be restrained if said liberty has the likelihood of putting others at risk. This applies to gun laws, traffic laws, or bringing shampoo bottles on airplanes. If a person doesn't want to get vaccinated, that is their choice. But they likely forfeit traveling, attending schools, or having certain jobs.

It is common to restrain a little liberty in order to protect the safety of the larger society. Consider the Oliver Wendell Holmes quote, "The right to swing my fist ends where the other man's nose begins."

Compulsory vaccination policies in this country began during the American Revolution. Smallpox was a huge threat to the Continental Army and word of the disease was actually halting enlistments. In order to protect soldiers and the war effort, General Washington ordered all new recruits receive the "variolation" for smallpox in 1776. The policy was successful at eradicating smallpox among soldiers, which helped the Continental Army defeat the British invasion at Saratoga.

The first law that required the general population get vaccinated was passed in Massachusetts in 1809. The state empowered local boards of health for towns to require free vaccinations of people over 21 if the boards felt it was necessary. If a person refused, they had to pay a $5 fine (about $100 in today's money). States across the country followed with their own compulsory smallpox vaccination laws though the specifics varied widely. Some only required compulsory vaccinations in the midst of an epidemic. Some only required vaccinations for children attending schools.

New York City exercised particularly broad power in allowing health officials to enforce vaccinations or quarantines. As a busy international harbor, the city felt particularly threatened by incoming diseases. As a result, immigrants and ships were often required to quarantine. Unfortunately, these policies often took on a distinctly anti-immigrant and nativist turn. Public health officials often blamed poor immigrants for spreading diseases rather than engaging in education to encourage vaccine compliance. Common policy in the late 19th century was to place a yellow flag in front of an infected building and not allow anyone in or out. However, there weren't clear guidelines on forcing a person to comply with a vaccination if they didn't want to. As a result, in 1894, Brooklyn's top health official Z. Taylor Emery would often enforce quarantines, to the point of not allowing provisions to be delivered, on those who refused being vaccinated. Emery's arbitrary and coercive policies resulted in backlash but the appeals court supported Emery's rationale of protecting the public.

In 1905, the question of compulsory vaccination laws made it to the United States Supreme Court in Jacobson v. Massachusetts. At the time, Massachusetts was one of 11 states that had compulsory vaccination laws. Jacobson was a Swedish immigrant who had a bad experience with a childhood vaccination. He refused the smallpox vaccination as an adult in Massachusetts. Jacobson was prosecuted and fined for refusing. He challenged the fine, claiming it was an invasion of his liberty. In a 7-2 decision the Supreme Court ruled that mandatory vaccination laws are not arbitrary or oppressive, as long as they don't "go so far beyond what was reasonably required for the safety of the public." Jacobson was affirmed in 1922 in Zucht v. King to support a school district refusing admittance to a student who was not vaccinated. That ruling was used as precedent in 2020 concerning cases resulting from COVID-19 policies.

There is a complicated history in the United States for compulsory healthcare with vulnerable communities. Coercive policies to force vaccinations might have produced results, but in 2021, we know better ways to encourage vaccination and public safety.

Education and restricting participation in certain activities, jobs and schools will likely be the vaccine policies going forward. We don't yet know exactly what activities will require proof of vaccinations, but such policies are not anything new. A "vaccine passport" on your phone will only serve to make the existing process of vaccine proof for schools, jobs and travel a little easier. This is a far cry from fascism or tyranny.

Mia Brett

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