The First Amendment to the Constitution says: “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.”
In the 45 words of this amendment do you see a so-called “establishment clause” – a phrase that allegedly bans the display of religious symbols on public property? Me, neither.
I do see this phrase: “… or prohibiting the free exercise thereof” – specifically recognizing the right of Americans to worship whom or whatever they please, wherever they please.
Tunnel vision? Hardly.
Constitutional experts have even maintained that the First Amendment explicitly protects displays of religious worship in “public.” Otherwise, they argue, what would have been the point of our founders to have even bothered to define the right?
Others who should can’t see this clarity. Count among them justices of the U.S. Supreme Court.
Last week the high court supported a lower federal court’s ruling forbidding the state of Kentucky from erecting a granite monument displaying the Ten Commandments.
It’s freedom of religion, men and women of the high court, not freedom from religion. As I read the First Amendment, it’s “Congress” that is restrained from passing laws “respecting an establishment of religion.” It doesn’t say anything about prohibiting state legislatures or city governments from doing exactly that.
“At an absolute minimum, the Establishment Clause was intended to prohibit the federal government from declaring and financially supporting a national religion, such as existed in many other countries at the time of the nation’s founding,” says an analysis by the University of Missouri-Kansas City School of Law [my emphasis]. “It is far less clear whether the Establishment Clause was also intended to prevent the federal government from supporting Christianity in general.”
Or states. Matter of fact, the 10th Amendment
addresses this question. It says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Also, the phrase “establishment clause” is a bit of a fabrication. It pertains to the First Amendment, but it was created by high-court judicial activism, whereby justices attempted to use a letter sent by Thomas Jefferson to Baptist officials in 1801 as justification the founders would not permit public religious displays.
Jefferson wrote there should exist a “wall of separation between Church and State,” but in the context in which he wrote those words, he was assuring church officials the federal government would not prohibit their worship.
In its 1947 Everson vs. Board of Education decision, the Supreme Court referenced Jefferson’s letter, but not in its intended context. Instead, justices found that “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 …”
That the 45 words of the First Amendment are clear to beginning law students – before they are tainted by jurisprudence – but not to seasoned Supreme Court justices is a testament to our modern judiciary. Plain English and the rule of law are often trumped by personal and political opinion. Doubt that? Then why do Senate battles over Supreme Court nominees come down to whether the nominee is seen as a pawn of one political school of thought or the other? Long gone are the days when candidates are chosen based on whether they can honestly interpret the words written in the Constitution.
Jefferson, in the same letter, also wrote “that the legislative powers of the government reach actions only, and not opinions …” By “prohibiting the free exercise” of religion, the high court becomes the legislature and, in its opinion, denies the right.
While our founders clearly did not want a “Church of England” created here in the United States, whereby citizens were forced to support only “the national religion,” judging by their writings and historical records of the time it is equally clear they never sought to prevent Americans from erecting religious symbols, shrines and tributes. In short, freely practicing their religion.
