Reflecting on First Amendment Week

Well, another First Amendment Week has come and gone, with obligatory nods to speech and press, but no mention of the FIRST listed freedom: religion. Perhaps that’s because we don’t know how to talk about religion without offending people, though there’s certainly enough offensive speech out there to call that notion into question.

Perhaps religion is ignored during First Amendment Week because the language in the amendment concerning religion is not as obvious as “speech” and “press.” “No abridgement of speech or press”  sounds pretty simple (more so in theory than practice, of course), but religion has two clauses devoted to it. Congress cannot establish a religion, nor can it prohibit the free exercise of religion. Complicating matters, a surface reading of the two clauses suggests that these two phenomena conflict with each other. After all, what would happen if people freely exercising their religion desired to do so by establishing their religion? For example, if Southern Baptists comprised a majority in the state of Texas, could they move to establish the Southern Baptist denomination as the official state religion?

Some of you probably find such a scenario to be rather scary, but in fact the two religion clauses were designed to complement each other, and this scenario is completely legitimate when the language of the amendment is understood in its original context. “Congress shall make no law respecting an establishment of religion.” In other words, Congress cannot take any measures to declare any specific religious sect the official religion of the regime. Just as important, Congress cannot make any law interfering with the actions of states in this area. And, in fact, about half of the states at the time of the ratification of the Bill of Rights had established religions, from the admittedly amorphous “Christian faith” to the more specific (for Massachusetts and Connecticut) Congregational Church.

Of course, this has all become a moot point. The last state to have an established religion disestablished it in 1833, and nothing about the fragmentary nature of faith in America suggests any single religion could approach the necessary political support to resurrect such an establishment today. Casual nods toward Christianity or even a watered-down monotheism hardly qualify “” you can’t “establish” something if there is no institution to establish.

This brings us to the issue of the free exercise of religion “” also something Congress can’t touch. So, what’s “free exercise”? Some in the political class today make more frequent mention of “freedom of worship” than “freedom of religion,” as though the amendment refers only to what you do in your house of worship. However, the use of the word “exercise” ““ which implies action and conduct ““ may also refer to religiously-motivated conduct, such as proselytizing, educating one’s children, giving aid to widows, orphans and the poor and refusing to comply with dictates that run contrary to one’s conscience. Thus, the two clauses work together to protect us from federal meddling in religion.

This understanding of the religion clauses does not solve all conflicts. For example, religiously-motivated polygamy and child sacrifice run contrary to the common good. But it does suggest that inviting a local pastor to give the invocation at a football game or graduation ceremony does not constitute an “establishment” of anything, and in fact is a completely constitutional free exercise of religion. It certainly isn’t the province of the federal government to meddle in such local matters.

In its utterly ahistorical interpretation of these clauses, the Supreme Court has made a mess of constitutional jurisprudence. These days it seems that ANY intersection of religion and politics is suspect, as though the First Amendment guarantees us freedom FROM religion. The Supreme Court is hardly infallible, and does not have legitimate authority to wave its magic wand and redefine or reinterpret constitutional language to mean precisely the opposite of its intent. One suspects there is a larger social agenda at work in the Court’s jurisprudence.

A recent case from New Mexico’s Supreme Court hints at the danger. In August one judge argued that while people “are free to think, to say, to believe as they wish,” and even free to “pray to the God of their choice and follow those commandments in their personal lives wherever they lead,” the “price of citizenship” means they can be “compelled by law to compromise the very religious beliefs that inspire their lives.” The incoherence of this argument “” freedom to follow commandments while being compelled to compromise those very commandments “” is astonishing.

James Madison said it best: man’s “duty towards the Creator” is “precedent both in order of time and degree of obligation, to the claims of Civil Society.” The security of our freedom of conscience requires a clear understanding of the entirety of the First Amendment.

David Crockett is a professor of political science.