Thinking Citizen Blog —The Constitution’s Two Religion Clauses — What Should Every Citizen Know?
Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day
Today’s Topic: The Constitution’s Two Religion clauses — what should every citizen know?
The First Amendment to the Constitution of the United States is most remembered for the right to free speech. But it begins with two religion clauses:
“Congress Shall Make No Law Respecting an Establishment of Religion or Prohibiting the Free Exercise thereof.”
Note, first of all, that the text restricts the US Congress, that is the federal government. Not state governments — several of which had established churches at the time. It was not until the Bill of Rights was gradually “incorporated” as against the states through the course of the 20th century that the myth grew that the Founding Fathers had intended there to be a strict separation of church and state at all levels of government.
The second point to remember is that the two religion clauses appear often in fundamental conflict. Any special treatment allowing any specific religion exemption from any secular law because of a peculiar tenet (eg. no working on Saturday, no fighting in wars, ingesting peyote, polygamy) would tend to “establish” that religion (eg. give special privileges to members of that religion).
Today, a few more notes on three landmark cases. Any strong feelings about the appropriate division of authority in such matters as between the states and the federal government? between the US Congress and the Supreme Court?
Experts — please chime in. Correct, elaborate, elucidate.
ENGEL V VITALE (1962) — Supreme Court, in a 6 to1 decision rules that a non-denominational prayer in New York Public Schools is a violation of the First Amendment.
1. At the time, only two members of the US Congress agreed with the Court’s decision.
2. Two members of the court (Felix Frankfurter and Byron White) chose to take no part in the deliberations.
3. Was this decision by the Court a case of judicial over-reach? Or did they get it right?
NB: The only dissenting judge was Potter Stewart who argued that the Amendment banned an established church not a non-mandatory prayer.
EVERSEN V BOARD OF EDUCATION (1947) — “incorporates” the First Amendment as against the states as well as the federal government, but at the same time allowed public funding of transportation by private schools
1. A case of having your cake and eating it too.
2. The vote was 5 to 4.
3. Dissenters were Jackson, Rutledge, Frankfurter, and Burton.
EMPLOYMENT DIVISION V SMITH (1990) — held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote even though the use of the drug was part of a religious ritual. Although states have the power to accommodate otherwise illegal acts performed in pursuit of religious beliefs, they are not required to do so.”
1. “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelliing” — permitting him, by virtue of his beliefs, “to become a law unto himself” — contradicts both constitutional tradition and common sense. To adopt a true “compelling interest” requirement for laws that affect religious practice would lead towards anarchy.” (Majority decision by Antonin Scalia)
2. Vote was 6 to 3. Dissenters were Blackmun, Brennan, and Marshall.
3. Congress rebuked the court and passed the “Religious Freedom Restoration Act” of 1993 declaring that the Court had erred and should apply “strict scrutiny” in all free exercise cases.
NB: In 1997 the Supreme Court ruled the “Religious Freedom Restoration Act” to be unconstitutional.
Employment Division v. Smith — Wikipedia
Everson v. Board of Education — Wikipedia
Abington School District v. Schempp — Wikipedia
Separation of church and state in the United States — Wikipedia
QUOTE OF THE MONTH
“Make your own Bible. Select and collect all the words and sentences that in all your readings have been to you like the blast of a trumpet.”
- Ralph Waldo Emerson
My spin — then periodically review, re-rank, and exchange your list with those you love. I call this the “Orion Exchange” because seven is about as many as any human can digest at a time. Game?
For the last four years of posts organized by theme:
PDF with headlines — Google Drive
Four special attachments below:
#1 A graphic guide to justice (9 metaphors on one page).
#2 “39 Songs, Prayers, and Poems: the Keys to the Hearts of Seven Billion People” — Adams House Senior Common Room Presentation, (11/17/20)
#4 Palestine Orion (Decision) — let’s exchange Orions, let’s find Rumi’s field (“Beyond all ideas of right and wrong, there is a field. Meet me there” Rumi, 13 century Persian Sufi mystic)
YOUR TURN
Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values.
Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values.
Or just some random justice-related fact that blew you away.
This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.
