The First Amendment: Freedom of Religion

The first Amendment to the Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.” [1] As mentioned last week, this provision provides Americans with five freedoms: religion, speech, the press, public assembly, and petitioning government for redress of grievances. In this blog, I am only going to address the first of these, but they are all of fundamental importance to American life.

Freedom of Religion

Why this particular list of rights was placed first in the list? Why was freedom of religion so important to the nation at the time of its founding—so important that Congress was more or less required to pass the First Amendment as part of the process of ratification of the Consitution? Was it just a matter of convenience or chance? I do not think so. The experience of the founders and their study of history persuaded them that these rights are fundamental to the maintenance of the form of representative democracy.

In Europe, prior to the American Revolution, all of these rights were restricted in many ways. As to religion, it was customary in Europe for governments to establish a national religion, to which all persons and all leaders had to subscribe. In Great Britain for example, the king and leaders of the government were required to be Anglicans, and before that Roman Catholics. Often those not of the established religion suffered political and economic disadvantages. Upon occasion those not of the established religion were persecuted. As a result, there was social conflict. The founders did not want the United States to experience the kind of conflict Europe had experienced over these matters. Therefore, they enshrined in the Bill of Rights a restriction on the establishment of any particular religion to be required of citizens..

In addition, at the time of the adoption of the Constitution, many of the states had established churches. In the South, the Anglican faith was often the established church, while in the North, it was frequently a particular Protestant faith group. Naturally, there was a fear among all these faith groups that some other group would end up as the established religion of the new nation. This would have provoked the exact situation that many colonists had come to America to avoid—religious persecution. In order to remedy the danger, the establishment clause was deemed necessary.

The text of the amendment was largely authored by James Madison, who modeled the amendment after the Virginia Declaration of Rights. By its terms, the freedom of religion provisions of the First Amendment apply only to the national government; however, in the 20th Century the First Amendment was applied to the states via the 14thAmendment. [2] There have always been tensions between the national government and a particular social consensus and the right of religion and such tensions continue to exist today. [3]

The Central Importance of Freedom of Religion

In guaranteeing freedom of religion, the founders were acknowledging that in our form of government people may have an ultimate loyalty different than loyalty to the state. That is to say that having religious faith, even a faith of which the dominant party does not approve, is a basic American right. It is not unfair to say that freedom of religion is the ground and basis of all other rights, for in granting this freedom a government is acknowledging a fundamental limitation on what government can and should legislate. Government may legislate in matters related to the public good of a society, but cannot interfere with the private ultimate concerns of individuals nor the exercise of their religious faith except under very limited conditions as it regulates matters which is entitled to regulate. [4]

It is difficult to over-estimate the importance of religious freedom to the maintenance of a free society. Totalitarian regimes of the 20th Century have persecuted some religious group. In the Soviet Union it was Orthodox Christians. In Nazi Germany, it was Jews and Christians who did not align themselves with the ideology of the regime. In parts of China today, it includes Muslims and other religious groups. In some Muslim nations it is all non-Muslims. For citizens of the United States, the First Amendment ensures their fundamental right to practice their religion and to speak publicly concerning their faith. [5]

Separation of Church and State

Perhaps the most contentious application of the First amendment in modern times has been the implication of the First Amendment that there must be some kind of “separation” of Church and State. Any analysis of this view must begin with the plain fact that the First Amendment simply says that Congress cannot establish a religion. It says nothing about separation. However, the grant of religious freedom itself implies some degree of separation, since the government cannot make laws that restrict religious freedom and the expression of religious faith.

As early as 1635 Roger Williams, the founder Rhode Island and separatist/puritan, publicly stated his belief an genuine Christian church required “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church.” Williams was a contentious individual, and had been in conflict with the religious and other leaders of Massachusetts over his views on property and religious matters.

In 1802, Thomas Jefferson used the phrase “Wall of Separation” in a private letter to describe his feelings about the nature of the separation the Constitution embodies. Jefferson wrote to the leaders of the Danbury Baptist Church:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. [6]

Jefferson’s letter, however has been important to the United States Supreme Court. In the 1947 case Everson v. Board of Education, the Court cited a direct link between Jefferson’s “wall of separation” concept and the First Amendment’s establishment clause. Writing for the Court, Justice Black, after setting out in detail the history summarized here stated:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.” [7]

Before, and ever since Everson, the language of “Wall of Separation” has been a phrase of contention and difficulty for the Court and scholars. The phrase itself is not very helpful, for there never was nor can there be such a “wall.” It is better to stay with the idea of rights to believe and exercise that belief free from interference by the government.

One continuing idea of this series of blogs is the notion that human beings and human societies are inherently social and interconnected. It is neither desirable nor possible to divorce individuals nor to enforce some kind of artificial division between religious faith and public life. There are and must be areas in which religion is free to operate without governmental inferference. There are also areas where government is free to operate which may impact religious groups—and these areas are not necessarily separated. For example, freedom of religion does not permit religious sects to engage in human sacrifice, and the state has a valid concern in protecting “life, liberty and property” in regulating the taking of life.

Wall of Separation language is used to buttress decisions made on other grounds—and can lead courts to bad decisions. It is a better notion to talk about religion and government as operating in different spheres of human life, touching upon each other and impacting one another at various points. The goal of the Constitution and courts in interpreting the First Amendment is to express limitations upon each in the proper exercise of their functions. There is and can be no “wall of separation” because human life is unitary and our ultimate concerns impact our political life and our political life impacts our ultimate concerns.

Limitations on First Amendment Rights

The current Covid19 epidemic has provided a series of challenges that can be helpful in thinking through what the First Amendment does and does not allow and prohibit. There have been a number of cases challenging public health initiatives, mask regulations, restrictions on gatherings, and the like on religious grounds. The responses of the courts sometimes have sometimes had a political tone, nevertheless the following seems to be the case:

  1. The states and national government have a valid interest in protecting against Covid19, and religious groups have no absolute religious exemption from reasonable, valid health regulations.
  2. If a state is to have restrictions that apply to religious organizations, such restrictions cannot be different than those on comparable groups, and of course, cannot be motivated by animus against religion or a religious group.
  3. The courts are not equipped or empowered to, nor should they, second guess governmental determinations about the seriousness of the epidemic or adequate health regulations equally applied to all similarly situated entities, including churches. [8]

It would be nice to think that we are past the Covid19 cases, but the emergence of the Delta variant and the pressure to bring back masks and some forms of restrictions on public meetings may render this untrue. On the part of government, restrictions need to be carefully crafted, recognizing the importance of religious institutions to human life. On the part of churches, there needs to be an acceptance of the fact that the First Amendment does not give religious institutions any kind of absolute exemption from public health regulations.

It would seem to me that these principles are those that ought to guide the court in this area as in other areas. For example, there is no absolute exemption to religious groups for zoning regulations; however, a zoning regulation that seems to target churches, is dissimilar to regulations governing other entities that are similar, for example non-profit groups, and which would render the freedom of religion meaningless, should be suspect on exactly the criteria mentioned above.

Conclusion

We are not finished with the First Amendment, to which I will return near the end of these blogs. I count myself among those who are concerned about the state of religion and religious freedom in our nation. It is the premise of these blogs that religion plays an important role in human life and in human society. Its voice needs to be heard in matters of public concern, and there should be few restrictions imposed under the guise of restricting “hate speech.” In a free society, we all have to tolerate a people with beliefs and policy preferences to which we object. This is true for all Americans. On the other hand, the right to speak and to exercise religious faith in public is not a carte blanche to ignore the good of society or not be faced with legitimate regulation for the public good. Public health reputation is a very good example of a legitimate area of governmental interest.

This is where the “politics of love” has something to say, and Christians should be in the forefront of moving our society from its beguilement by identity politics and emotion-laden language about public matters. Public officials need to serve all their constituents, including religious groups, giving them the most freedom that is possible in any given situation. Religious groups need to give public agencies the benefit of their views and the benefit of their willingness to compromise in the process of seeking the public good.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] US Constitution, Amendment 1.

[2] I will discuss the 13th, 14th, and 15th Amendments when we reach the Civil War and its aftermath in this study. See, Cantwell v. Connecticut 310 US 396 (1940).

[3] For example in Reynolds v. United States 98 US 145 (1879), the U.S. Supreme court was faced with a challenge to a law prohibiting polygamy on the grounds that such a restriction would interfere with the religious beliefs of Mormons. Reynolds was a Mormon and claimed that polygamy was an essential part of the practice of his rekgions faith. The court upheld the law prohibiting polygamy. In Engle vs Engel v. Vitale, 370 U.S. 421 (1962), the court held that public schools cannot have a written prayer as a part of the their day, as whatever the form of that prayer, it would interfere with students of some other religion in such a way as to establish a religion.

[4] I am using this term made popular by the theologian Paul Tillich. In his book Dynamics of Faith, Tillich uses this definition of faith as state of being ultimately concerned. If an object of faith (God or whatever any religion claims ultimate) such faith demands the total surrender of the person who accepts this claim on his or her life, and that faith promises total fulfillment even if all others have claim to be subjected to it or rejected (See Paul Tillich, Dynamics of Faith (New York, Harper & row, 1958), 1.

[5] In the beginning, the First Amendment protected minority Christian sects and Jewish people from religious persecution. Today, the Supreme Court has recognized that, under the pluralistic condition of contemporary America that freedom extends to all religious.

[6] Thomas Jefferson, Letter to the Danbury Church (January 1, 1802).

[7] Everson v. Board of Education, 330 US 1 (1947).

[8] The Federal Courts and US supreme court have been faced with a variety of challenges to various restrictions placed upon religions organizations due to the Covid epidemic. Justice Ginsburg died during the emergence of these cases and there has been some change in the direction of the court since Amy Comey Barrett joined the court. However, the general direction of the court has changed only in degree, in my opinion, not in legal substance. For a complete list of cases see, United States courts, “Court Orders and Updates During COVID-19 Pandemic” https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic, downloaded September 1, 2021.

 

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