Legalese — Freedom of Religion

Freedom of Religion

In my last Legalese column, I talked about the First Amendment, most specifically the Freedom of Speech.  I’d like to talk about the First Amendment some more, this time focusing a little bit more on the Free Exercise of Religion section.  To reiterate, following is the exact language of the First Amendment:

“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.”

What exactly does it mean that “Congress shall make no law respecting an establishment of religion”? 

Lucky for us, my opinion doesn’t enter into it.  The United States Supreme Court has already weighed in pretty solidly on this matter.  Everson v. Board of Education of Ewing TP Et Al, 330 U.S. 1 (1947) explains it pretty well and goes into the history about why this got placed in the Constitution in the first place.  Following is a long quote, but it is worth reading:  “An exercise of this authority [in the new world] was accompanied by a repetition of many of the old world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters.

These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights’ provisions embracing religious liberty. But Virginia, where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.

The movement toward this end reached its dramatic climax in Virginia in 1785—86 when the Virginia legislative body was about to renew Virginia’s tax levy for the support of the established church. Thomas Jefferson and James Madison led the fight against this tax. Madison wrote his great Memorial and Remonstrance against the law. In it, he eloquently argued that a true religion did not need the support of law; that no person, either believer or non-believer, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free; and that cruel persecutions were the inevitable result of government-established religions.”  (Footnotes omitted.) 

As a result, “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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ Reynolds v. United States, supra, 98 U.S. at page 164, 25 L.Ed. 244.”

Think about what these words from the Supreme Court which have been the law of the land for seventy-five years mean when and if you hear arguments for prayer in public schools or arguments for or against politicians because of their religious beliefs (or non-beliefs.)  Whatever your personal opinions, how does the First Amendment affect your analysis about whether tax dollars should be used to support religious schools?  Should a tax paying Christian’s tax dollars fund a Jewish or Muslim school?  Should a Hindu student attending a public school pray in Jesus’ name?  Should an atheist or agnostic be unqualified for office? 

What would the Supreme Court say?

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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