“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.” Amendment 1 to the US Constitution – Freedom of religion, speech, and the press: rights of assembly and petition.
If you are like me, then you sometimes wonder about strange things. One habit I have is to look up facts that I have long taken for granted. When I do, I am often surprised. Reading a book by Alice Baldwin (1), The New England Pulpit, and the American Revolution, sparked me to revisit Freedom of Religion.
I knew that the Bill of Rights enshrined it as one of our core freedoms. I knew that it had been extensively litigated, interpreted, and reinterpreted. I knew that it formed the battleground for classic culture battles – Prayer in school, display of the Ten Commandments, and arguments over crosses in Federal Cemeteries. However, I also realized that I had not read the Bill of Rights in many years. So I delved in.
Sure enough, things were not as I remembered. I had forgotten that the First Amendment includes three fundamental rights – Religion, Speech, and Assembly. Surely, our most basic and essential rights. Otherwise, they would have been listed separately. Religion is the first enumerated and appears to enjoy pride of place. We assume it was foremost in the framers’ minds and are tempted to consider it to have the highest import. We could do that, although the other two, Speech and Assembly, overlap religion. In fact, without any one of the three, you could not have the other two. They are inseparable. If a society is not free to speak, or to assemble, then how can it have freedom of religion?
Why did the framers place such importance on these rights? What in their experience or education caused them to expound these rights?
We had just emerged from the protracted conflict with England, and in the run-up to the Revolution, the Crown had often restricted these same rights. England, like many countries, established a national church and levied taxes to support that church. At least, this is the reasoning taught. This line of thought is accurate, albeit a bit simplistic. In the decades before the revolution, the actions of the Colonial Legislatures and Assemblies themselves were just as onerous. Coming from their peers, the framers found this homegrown meddling even more troubling.
In her book, Baldwin explains that Colonial Governments often sanctioned one official religion, and persecuted the others. Some Assemblies would refuse the ministers of competing religions the right to enter the Colony. Others meddled directly in the operation of churches. The Connecticut Legislature passed an act preventing the formation of new churches without legislative permission. Some Magistrates exerted control over who could be ordained a minister. Laws in Massachusetts, New Hampshire, and Connecticut required citizens to pay taxes to a recognized church. This “Minister’s Tax” was the cause of numerous petitions for relief. Petitioners argued that it was a violation of natural law to force a citizen to support a church, with which they disagreed. Many who fought these laws suffered imprisonment and loss of property. Punishments levied, not by England, but by the colonial government.
These shared experiences prompted the framers to protect religion from the actions of government, not government from the church. After all, those with little power require protection from those with greater power, and who has the greater power, religion or government?
Sadly, our courts have turned this on its head, and we expend considerable effort to protect the state from the influence of the church.
So I ask you, what does the First Amendment guarantee – Freedom of Religion, or Freedom from Religion?