Today I heard Cory Burnell, founder of Christian Exodus, claim that the First Amendment only prohibits the legislature from writing a law respecting an establishment of religion, so he claims, this is just a prohibition on the legislature from writing a law, and not a prohibition on prayer at a city council meeting nor a prohibition on posting of the Ten Commandments. The central tenet of the amendment is that the legislature shall not make a law, therefore if the congress doesn't make a law, then the first amendment hasn't been violated.
What do you think of his comments?
[original post]
The first thing to notice here is that we are looking at an attempted literalist reading of the First Amendment — and even worse, a conveniently selective one at that. This argument seeks to limit the First Amendment to just acts of the legislature on the theory that acts of city councils are not mentioned, but neither does the First Amendment mention "legislature" generally either. The First Amendment only mentions "Congress" and anyone who wants to use a truly literalist reading must limit the First Amendment to just the federal legislature.
Not too many conservatives want to do this, however, because they would be forced to defend the idea that state and local governments have the authority to limit free speech, freedom of religion, freedom of assembly, etc. There are a few who believe this and who have even argued that it's acceptable for states to institute their own established churches, but this manages to remain a rare position. The above argument gets around having to defend this by expanding the meaning of the First Amendment to all legislatures, but upon what justification? None — it's an unstated premise that is not defended and I don't think it can be defended.
If we were to take the argument seriously, we would have to conclude that there is no First Amendment ban on city councils trying to restrict free speech, directly promoting belief in Jesus, attacking all religions other than Christianity, etc. How acceptable do you think people would find this? The above argument wants to limit the First Amendment to just laws passed by legislatures, but they aren't the only means by which government exercises power over people and thus not the only means by which freedom of speech or freedom of religion can be interfered with.
Assuming Cory Burnell really did make the above argument, do you suppose he would accept having his religious freedom restricted so long as it wasn't through a law passed by a legislature? I doubt it — I think he'd file a lawsuit and base his case on the First Amendment. If that's the case, however, then he can't claim that governments have the authority to promote religion so long as they don't do so through laws passed by a legislature. That would be a transparent form of hypocrisy.
Thanks for hitting this. I have been bothered/baffled by the term “law” in the First Amendment, since there are myriad other means that controls can be passed that affect populations (as you pointed out). And I am also aware that different areas have had sponsored churches (or religions or something like that). I’m not totally up on it, but I recall being supprised at state sponsored religions. It was apparently a sporadic practice awhile back?
While I support the broader reading of the Amendment, mainly for the reasons you note. I mean, how useless would it be if it actually only affected the creation of a “law”? But then I’m baffled why it was written to only note a “law”? I guess some historic insight would be in order for me. I don’t think the founding fathers were so stupid as to miss such an important point, and I wonder what _their_ point was. It seems that they could have been far more clear if they’d wanted to–to indicate any act, ban, or prohibition, injunction, whatever…?
I know the document was “intentionally vague”; but at the same time, this seems to be a case of unintentionally (and naively) specific, which is odd to me.
In my somewhat limited reading about this and related issues, I got the impression that the courts have based their broader reading of the establishment clause on two points, even when they haven’t been that explicit about them. First, an earlier version was rejected that barred only the establishment of a national church. Hence, the authors acted as if they meant the establishment clause in a broad sense. Second is the bit in the bill of rights that says that the rights listed aren’t a complete list and that individuals and states as appropriate, retain other rights not listed. I think this is the reasoning often used by Justice Breyer on this issue and others like laws against consensual adult sexual behavior, the comstock laws barring distribution of information on contraception, and the Roe v. Wade decision on abortion. The idea is that we retain a legal ‘personal sphere’ if you will, where the government can’t interfere without some compelling reason. The courts have not been that consistent about this line of reasoning, but I suppose we can’t have everything.
Thanks for you input, Ned.
Thanks Tracieh. I always look for your comments on these things as you’ve always had good things to say.
I never really think of the first amendment as confusing. I believe people make it that way by interjecting their own personal beliefs.
The establishment clause simply means that as far as the law is concerned there is no such thing as religion..period!
And as far as the “free exercise” (this I believe is the harder part) but to me simply means that the law can not and will not interfear with you believing anything you wish on your own time in the privacy of your own home.
This is about as simple as I can state this.
Chuck
Chuck: My question–and the one posed in the article is: “Is this only as regards _law_?” Because _law_ is the only means mentioned that is banned from infringing on religion. There are many _nonlaw_ forms of enforcement or prohibition. Are those outside the first amendment? If not–on what grounds (since it very specifically mentions “law”)?
Ned’s reference to looking at what might have been the driving force behind the amendment certainly sheds some light. But for me, it’s still unfortunate that they said “law” and indicated Congress specifically as well. If they wanted all hands off religion–there were broader ways to state that which wouldn’t be so technically restricted.
Where there is ambiguity, I tend toward literal reading; but in this case, I have to say that the literal reading isn’t what I’d like it to be. And considering this was a very important document, I’m left wondering why they’d prohibit such laws–but not other means of social/political controls on religion. It’s a huge (and in my opinion, unnecessary) loophole.
The Bill of Rights does (with some exceptions) apply to the states because of the Fourteenth Amendment.
Perhaps it is pertinent that the word “religion” rather than church is used in Amendment I. If Congress shall make no law, it does not rationally follow that the President, Supreme Court, states or the people can. It is a constitutional prohibition, not something reserved to the states and lesser government, or to the people. The “free excercise” obviously means not using government as a religious agent, only as a protector of a diversity of religious practices in private life which includes churches. Perhaps the difference of public and private would be helpful? Perhaps more attention to Article VI would be helpful: its relationship to no “religious Test” for all national and state offices. More attention to the “law of the land”?
Theocracy bad; freedom good! And that was well known by founders more aware of history than many of those after them and now. The most slimy are those who know but motivated by greed and power ignore. Perhaps it is also significant that people have the right to life, liberty, and happiness but not religiously, dictatorially pursue it for others? They have the right to make their marriages happy but not dictate what a happy marriage is for others. The state can legally intercede to protect children being abused; it is another matter for the state to decide that marriages of some will result in abuse. So it would be well if they concentrated on their religions and marriages and let others do the same. Conceit bad; liberty good?
Believing curtailment of actions that dictate to others is a denial of dictators’ freedom has to be the damndest, ignorant conceit of all? IF YOU OPPOSE MY RIGHT TO CONTROL YOU; YOU DENY MY RIGHTS TO LIFE, LIBERTY, RELIGION, AND HAPPINESS? EXTREME BS?
None of this means Larry Craig can declare sex in public places religion.
There are laws that prohibit sexual acts in public facilities because such acts limit the freedom of others to make proper,happy use of those facilities. Some want to declare agnostic-atheists religious beings; declaration does not make it so. However, I am the world’s goodest of the goody goods; believe it or neglect our god given and contitutional religious rights! And it is in the Bible which exceeds all other declarations of mankind. God dictated the Declaration of Independence to Jefferson and the Constitution to to the founders just as she dictated the Decalogue to Moses on thet thar hill top.