Preserving Religious Freedom: Understanding the “Establishment Clause”

“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.” – the First Amendment to the U.S. Constitution

According to the Bill of Rights page at archives.gov, our Bill of Rights was written to mollify criticisms of the Constitution that it did not do enough to check the power of the central government and would lead to the same kind of tyranny the former colonists knew under Britain. These critics demand that citizens’ immunities be spelled out explicitly.

This simple context is important to interpreting the First Amendment rightly.  These amendments were written to limit the central government’s, especially the legislative branch, power over its citizens.  They are an enumeration of the natural rights referenced in the Declaration of Independence as the transcendent grounds of revolution – the God-given rights which government exists to preserve.

It is significant then that the “Establishment Clause” of the First Amendment is about what Congress cannot do in terms of supporting or suppressing religion. It is not about what you cannot do as a citizen, what families cannot do, what businesses cannot do, what schools cannot do, what churches cannot do, or even what state and local governments cannot do (which makes me wonder about the extent to which state and local laws must abide by amendments directed toward the federal government – any contributions here would be appreciated).  Too often the First Amendment is misconstrued and misused by applying it too broadly to discourage other persons or institutions (who are not Congress!) from advancing the influence of religion in society. It is meant to protect us from the central government, whose inclination, as the history of Europe attests, is to wed itself to religion to advance its power interests, not from those who would freely exercise their religion by trying to promote it.

Such abuse of the First Amendment is often accompanied by appeals to the so-called “separation of church and state.”  This specious argument is used, it seems, when someone is uncomfortable with religious adherents engaging in religious activity in any kind of public space. Notice that this phrase has no part of the Bill of Rights.  Its origins lie in a letter from Thomas Jefferson to Baptist pastors in Virginia, assuring them that the Baptist church would not be oppressed by the government. This concept has no legal authority!

A second observation is that religious freedom is the first one enshrined in the Bill of Rights.  The order is no accident; this is not arbitrary.  The order speaks to the importance:  other rights/freedoms follow from the right to exercise religion without interference from the federal government. Why this is the case is a question I will explore in later writing.  Suffice to say that religion limits the power of the legislature by affirming the existence of and promoting the knowledge of divine Law, which limits the obligations the central government can impose on us, and that all men – the powerful and the penniless – are accountable to obey.

A final observation is that the two criteria laws must satisfy are in an either/or relationship.  In other words, a law is unconstitutional if it violates either of these standards.  More secular minded people are often very sensitive to the not establishing religion standard but ignore or downplay the free exercise part. Establishing religion has to do with using the power and resources of the federal government to establish a national Church.  It is not a license for suppressing the influence of religion in the public sphere, which the ‘free exercise of religion’ entails.

In my next post, I will look at some recent Supreme Court decisions where the First Amendment has been applied faithfully to uphold religious freedoms.