My post today is part opinion, part history lesson. I know this is rather out-of-character for this blog...usually I post on videography or art, but today you get a special treat. Recently we've been hearing lots in the news about religious liberty and the First Amendment. I wrote this particular piece without intending any sort of publication...but with the state of current events, I thought it appropriate to post something that may, for some, give a better perspective on the current state of affairs in American politics. So, here you are, feel free to post comments on what you think!
The Original Intent of the Establishment Clause compared to Modern Interpretations Thereof
The Establishment Clause of the First Amendment to the American Constitution says that “Congress shall make no law respecting an establishment of religion...” This Clause, when written, was supposed to prevent the federal government from establishing a state-sponsored religion. A secondary effect of the Clause was to quell rivalries between the various Christian sects. Initially this original intent was clearly understood and applied to cases in the American court system, but over time and through the application Enlightenment-era philosophy, the Establishment Clause has, in practice, evolved into something wholly different. Far from the original intent, the courts now interpret the Clause as holding the federal and state governments neutral between Christian sects, between Christianity and other religions, and as neutral between religion and irreligion. In the span of nearly 300 years our country has gone from specifically recognizing Jesus Christ as God, to merely recognizing God in general, and now to the agnostic position of neutrality on the existence of a Supreme Being at all.
Passing the Bill of Rights was an essential measure in winning consensus for the creation of a federal government. Without it, several states would not have supported the Constitution, and the union could have died very early in its existence. Those supporting a Bill of Rights (the Anti-Federalists) believed that the federal government would inevitably abuse its authority and infringe upon individual and state rights if those rights were not established in writing. At this point in history, and continuing into the mid-19th century, many of the states had established religions. The First Amendment, specifically the Establishment Clause, was written in such a way as to ease worries that the federal government would interfere with religion, at the time understood to be the rightful jurisdiction of the states. Justice Thomas, in his concurring opinion from Elk Grove Unified School District v. Newdow (2004), confirms that “the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference...”1 Massachusetts supported the Congregational Church, and continued such support until 1833, while Connecticut supported the Congregational Church until 1818.2 States with established religions, such as Massachusetts and Connecticut, saw the ability to have an established religion as a power not enumerated to the federal government, wished to continue support of religion without federal interference.
During the proceedings of the First Congress, James Madison (the primary author of the Bill of Rights) explained the intended meaning of the Establishment Clause to be “that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”3 This statement conforms with the general attitude in 18th century America towards the government's relationship with religious belief: religion, specifically Christian religion, should be promoted and encouraged by the state over other non-Christian systems of belief. Justice Rehnquist confirmed that this was the historical situation, in his dissenting opinion from Wallace v. Jaffree. He states that Madison “saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among (Christian) sects. He did not see it as requiring neutrality on the part of government between religion and irreligion.”4
Despite the period's common understanding that Christianity should be promoted, there were those who dissented. John Locke was one of the foremost Enlightenment-era philosophers. He wrote that all religions should be tolerated, and that none should be supported by the government. In effect, Locke thought that “true religion consists of genuine inward persuasion of mind,”5 and that the state should have no business interfering with the individual's freedom to choose his path to salvation. Thomas Jefferson, a devoted follower of Locke's philosophy, wrote the infamous words “wall of separation between Church and State” several years after the First Amendment's ratification. Jefferson, a diplomat in France at the time of the First Congress, was not involved in the debates regarding the First Amendment at all. He interpreted the Establishment Clause through the lens of Enlightenment thought, not as the Congress had deliberately written it. Yet his words have been used by the courts as a proper interpretation of the Establishment Clause.
Despite the original intent of the Establishment Clause as a federalism measure, its practical application has evolved over time. As Enlightenment teachings on toleration and the subjectivity of belief became more widespread, the Supreme Court was not immune from absorbing them. Agreeing with Locke's thought, Justice Stevens wrote that “the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith, or none at all...religious beliefs worthy of respect are the product of free and voluntary choice of the faithful.”6 While it is true that religious belief should not be forced, the idea that “all faith chosen freely is correct” is seriously flawed. If religion is equated to any belief at all, including atheism, the government forces itself into an “official agnosticism,” or practical atheism. According to the natural moral law, every government is obligated to recognize God, and acknowledge Him as the source of its authority.7 Yet here we see a government that is prevented from expressing any opinion about God, on the basis of a civil law that had no such intended effect.
The Establishment Clause has been applied in a way never intended by its writers. Meant to prevent federal intrusion into state matters, and perhaps to prevent rivalries between Christian sects, it has been erected as a major barrier between Church and State through the use of broad interpretations and poor understandings of history. The moral precept to acknowledge God has no exceptions, and when this fundamental basis of morality is held in question by a government, serious problems arise. A government pursuing neutrality between religion and irreligion inevitably discriminates against the religious. This consequence of interpretation holds great irony, as the First Amendment further states that the federal government may not pass any law “prohibiting the free exercise thereof (of religion).” An amendment intended to protect state and individual rights has been championed as a cause to trample both. States are sued over the use of the word “God” in official contexts,8 non-denominational prayer is banned from schools,9 and individuals in government are highly encouraged to “keep their faiths to themselves.” Radical regression to the original intent of the Establishment Clause is necessary for the restoration of proper order in American society, and must happen before religious liberty suffers more encroachment.
1Cornell University Law School (Legal Information Institute), Elk Grove Unified School Dist. v. Newdow, Justice Thomas' concurring opinion, accessed 02/04/12, http://www.law.cornell.edu/supct/html/02-1624.ZC2.html
2Wikipedia, On State-Sponsored Religion, accessed 02/05/12 http://en.wikipedia.org/wiki/State_religion#Tabular_summary
3105 S.Ct. 2479 (1985), p. 2510.
4105 S.Ct. 2479 (1985), p. 2511.
5Stanford Encyclopedia of Philosophy, Locke's Political Philosophy, revised 07/29/10, accessed 02/05/12 http://plato.stanford.edu/entries/locke-political/#Tol
6105 S.Ct. 2479 (1985), p. 2488
7Right and Reason, 2nd edition, Father Austin Fagothey, TAN publishers, pp. 273, 354-355
8Elk Grove Unified School District v. Newdow
9Wallace v. Jaffree