This is an excellent read.
http://www.firstprinciplesjournal.com/articles.aspx?article=1485
Discuss.
http://www.firstprinciplesjournal.com/articles.aspx?article=1485
The First Amendment, which became part of the Constitution of the United States on December 15, 1791, as the leading article in the Bill of Rights, begins with this pair of clauses: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Amendment then stipulates that Congress shall make no law “abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This juxtaposition prompts a question: Why wasn’t the Free-Exercise Clause (Congress shall make no law “prohibiting the free exercise” of religion) sufficient in itself? No other First Amendment right—freedom of speech, press, peaceable assembly, or petition—has a pair of clauses devoted to it.
An establishment of religion is a declaration by a government, in a law, of a preference for one particular religion, which the law names. This declaration of a preference is substantial and not just nominal, because the establishment law grants the preferred religion some substantial benefit that government alone can confer. The establishment law confers the benefit on the identified religion only; the churches of other religions, and persons unaffiliated with any organized religion, are excluded from receiving it. Typically, the benefit bestowed is the privilege of receiving institutional support from public revenues or the privilege to vote and hold public office—sometimes a combination of both. No establishment of religion exists when a government treats the members of every faith equally, tolerates free, public expression of any religious faith, and enacts no establishment law bestowing a substantial governmental benefit on one religion to the exclusion of all others.
Historically speaking, it is implausible to claim that personal expressions of religious belief—for example, voluntary participation in a group prayer or the silent prayer of an individual—could constitute a religious establishment just because they occur on public property with the approval of elected or lawfully appointed public officials. Yet that was what the Supreme Court held in its 1962 judgment in Engel and in its 1985 judgment in Wallace v. Jaffree. The former held unconstitutional voluntary participation in group prayer and the latter, individual silent prayer, in public schools when approved by school officials. In Engel v. Vitale the Supreme Court misconstrued “an establishment of religion” to mean the approval of religious exercises by public officials, even though their approval conferred no exclusive benefit on any religious congregation. In Engel, the Supreme Court moved from protecting religious exercises in public schools, under the First Amendment’s Free-Exercise Clause, to condemning them as religious establishments.
The religion clauses for the First Amendment that Madison introduced in the House of Representatives read as follows: “The civil rights of none shall be abridged on account of religious belief or worship, [n]or shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext, infringed.” This awkward wordiness was amended by a majority of his colleagues in the House, under the leadership of Fisher Ames of Massachusetts, to read: “Congress shall make no law establishing Religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” The Senate then amended that language further to, “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” All three of these statements had the evident aim of prohibiting Congress from enacting a law that would, in Madison’s words, establish “any national religion.” And despite their various styles and various degrees of specificity, all of them protected the free exercise of religious beliefs.
None of this history of the Establishment Clause, however, restrained the Supreme Court in 1962 in its school prayer decision. In Engel, the Court ignored both the historical meaning of an establishment of religion and the Establishment Clause’s history. The Court in this case applied an unhistorical meaning of religious establishments and claimed an unwarranted jurisdiction to regulate religious practices in the states.
By relying in 1962, in Engel v. Vitale, on Hugo Black’s grossly inflated definition of religious establishment in his 1947 Everson decision, the Supreme Court was building its precedents on an illogical foundation. But the 1962 decision was unsound in other ways as well. For it is certainly unsound jurisprudence, even in the most freewheeling theory of constitutional interpretation, to use one provision of the Constitution to suppress another provision, as was done in Engel v. Vitale when the Establishment Clause was used to suppress the First Amendment’s Free-Exercise Clause. The provisions of the Constitution must be presumed, on principle, to be parts of the same coherent law, and interpreted as being consistent with each other and in no sense containing mutual contradictions.
Legal arguments based on offended feelings have dubious constitutional legitimacy. No provision in the U.S. Constitution guarantees citizens immunity against having their religious or political sensibilities offended by the orderly, public expression of the political or religious beliefs of other citizens. To have meaningful rights with respect to freedom of religion, freedom of speech, freedom of the press, freedom of peaceable assembly, and freedom of petition, the equal protection of every citizen’s feelings is an inherently impossible goal. When it comes to exercising First Amendment rights, the equal protection of feelings is not something government can aim to accomplish.
The inconsistencies and vacillations, the historical inaccuracies and injudicious rationalizations, the occasional ideological dogmatism and sometimes the sheer absence of logic that one encounters in reviewing the opinions of the Supreme Court on religious matters since 1947 have led one commentator to observe that the Court’s jurisprudence regarding religion is “an intellectual mess.”2 But how to correct this mess? Over the past two decades, a sophisticated literature has emerged that plainly reveals the historical fallacies and tendentious theorizing that lie at the basis of the Court’s religion decisions. Yet still, decisions such as Engel have not been overturned. The Court remains adamant in its defense of the secularism of public institutions. It seems only a new constitutional amendment could return us to the religious liberty envisioned in the First Amendment. One thing is certain: to relegate freedom of religion solely to nonpublic venues is an unconstitutional suppression of belief in God, a belief that has been of central importance to Americans throughout their history.
Discuss.
