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Posted by on Nov 1, 2014 in Legal Discourse | 0 comments

Does the Constitution Grant Freedom of Religion or Freedom from Religion?

By: Joshua Valentine

Ever since our Founding Fathers drafted the Declaration of Independence, our nation has been engulfed in a great struggle over religious freedom—a struggle not merely for religious freedom, but a struggle of defining exactly what religious freedom is. From pulpits to platforms, from churches to courtrooms, the debate over our First Amendment rights has escalated, reaching a climax with Supreme Court cases such as Everson v. Board of Education, Engel v. Vitale, Lee v. Weisman, County of Allegheny v. ACLU, Employee Division v. Smith, McCreary County v. ACLU, and Van Orden v. Perry. While most people are familiar with the impact that main religious freedom court cases have had on society, many are not familiar with other incidents that occur almost daily, which challenge the strength and meaning of the religious freedom ensured by our Constitution. Through this article, I hope to draw your attention to a few of these incidents.

To recap First Amendment principles, the Constitution contains two clauses relating to religious freedom. The first is the Establishment Clause, which prevents the government from promoting or establishing a religion. The second is the Free Exercise Clause, which prohibits government from inhibiting the free exercise of religion. These competing interests create a constant tension in the “wall of separation” between the government and religion. For where the Establishment Clause is furthered, the Free Exercise Clause may be violated, and vice versa. Thus, the Supreme Court has often referred to the “play in the joints” that exists and must be balanced between the Establishment Clause and the Free Exercise Clause in order to uphold our invaluable religious freedom.

Consider, for example, a sophomore at Mora High School who was kept from praying prior to eating her lunch at school this past September. Right before she began eating, Ms. Ashe bowed her head to pray, when a superintendent came up and said she could not do that. She did not ask for anyone to pray with her or for anyone to listen to her pray. She did not even pray out loud—she was not forcing religion on anyone, and neither was the school for that matter. Ms. Ashe was merely exercising a personal conviction of her faith. Yet, presumably, the school feared that allowing a student to pray could be viewed as an endorsement of religion. Nowhere in our Constitution are public displays of faith by private citizens prohibited—faith is a personal matter that should not be obstructed by politics. The factual circumstances surrounding the incident are currently being investigated.

Also, this past summer, the football players of Arkansas State University were told they would not be allowed to keep a cross decal on the back of their helmets. The players and coaches had made a voluntary decision to put the cross decal on their helmets in memory of a player and a manager who were killed earlier in the year. After being threatened with a lawsuit for allegedly endorsing religion in violation of the Establishment Clause, the school ordered the students to either remove the decals or alter them into plus signs. Similar to Mora High, this school also feared that by allowing the players to express their sorrow in this manner, it would be endorsing a religion. Yet this time, after the players threatened the school with a lawsuit for violating their free expression rights, the school compromised by allowing the players to keep the decals so long as the players paid for them, thereby avoiding the use of government money.

In analyzing the Establishment Clause jurisprudence, it is important to refer to the historical role religion has played in our government since before its inception. When the Second Constitutional Convention was gridlocked and the delegates could not come to a consensus, the great statesman Benjamin Franklin, led them in prayer. Thomas Jefferson, the author of the Declaration of Independence, penned the words: “We are endowed by our Creator with certain unalienable rights. . . .” Our first military general and President, George Washington, took his oath of office on a Bible and deliberately made a prayer one of his first official acts as President. He stated: “[I]t would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes.”[1] Subsequent Presidents have made this an integral part of their inaugural addresses ever since.

Our nation’s Congress has opened in prayer since the First Congress. In the legislative prayer case of Marsh v. Chambers, the majority opinion aptly stated “To invoke Divine guidance on a public body entrusted with making the laws is not . . . an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people whose institutions presuppose a Supreme Being.” The Supreme Court’s sessions have begun with the words “God save the United States and this Honorable Court” since the time of Justice Marshall. Our currency is engraved with the words “One nation under God.” And the list goes on. These very facts demonstrate that the Establishment Clause was not written to provide freedom from religion—it was written to protect freedom of religion. While not all scholars agree with this viewpoint, as Justice Scalia stated in his Lee v. Weisman dissent, the Constitution “cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.”

I believe that it was more than coincidence that our forefathers included religious freedom in the very first amendment of the Constitution. Yet, as we see in the examples above, the limitations imposed on government at the founding of our nation have become warped into limitations on religious expression. As Justice Scalia further explained in Lee, the Establishment Clause was enacted to prevent an individual from being “coerced” into practicing a particular religion. Freedom devoid of moral principle will ultimately devolve into license, and if we lose our foundational First Amendment rights, it is difficult to foresee the rest of our rights standing much longer. Exactly how much further will the Free Exercise Clause be overhauled in the interest of preserving an Establishment Clause jurisprudence not grounded in the understanding of those who created it? Well, that ought to be a matter of grave concern to us all. Let us be those of whom—twenty, fifty, or a hundred years from now—it is said: “They were the ones who stood up in their generation and preserved America’s fundamental, inalienable, and Constitutional freedom of religion.”

[1] Inaugural Addresses of the Presidents of the United States, S. Doc. 101-10, p. 2 (1989).