Monday, July 26

Part 6 — The Great Divide — The First Amendment



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Part 6 -- 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.

 When most people think of religion and the Constitution, they automatically think of the First Amendment, especially the “establishment” and “free exercise” clauses. This is true even if the person doing the thinking usually cannot quote the First Amendment, knows nothing of its history, and knows nothing about the relevant case law. They nevertheless know that the First Amendment has something-or-other to do with government and religion, on the one hand, and with people and religion, on the other. Some subliminal idea about what the First Amendment says is just part of the cultural DNA of the Nation. What almost always ends up getting glossed over is that fact that the First Amendment, its history, and the stream of case law of which it is the source together comprise a kind of microcosm of the history of religious dissent in the American Colonies and, in fact, in Europe back through the great religious wars of the 16th and 17th centuries.


The Origin of the First Amendment

When the Constitution was submitted to the Colonies – soon to be States – for ratification, beginning in late 1787, the delegates to the State conventions comprised three broad groups of people. There were people who favored the ratification of the Constitution almost exactly as it was submitted. These were known popularly and in the press as “Federalists”, since they favored the strong Federal government the Constitution was designed to create. (Of course, “strong” is a relative term. I characterize the government described in the Constitution as “strong” only in comparison to the extremely weak central government described in the Articles of Confederation, which the Constitution was intended to replace.) Then there was a second group deeply suspicious of and implacably opposed to a strong central government and therefore to the Constitution as submitted. These came to be known, more or less interchangeably, as “anti-Federalists” or “Jeffersonians”, the latter term referring to Thomas Jefferson’s strong preference for a central government which, while stronger than that permitted by the Articles, nevertheless left most power in the hands of the States. However, the third and largest group represented in the State ratification conventions comprised people who favored ratification of the as-submitted Constitution, but only on condition that certain changes – constitutional Amendments – were made to the text. Consequently, when the State ratification conventions had rendered their decisions, most of the ratification documents transmitted back to Philadelphia were conditional upon the adoption of the requested Amendments. When (primarily) James Madison had finished reading, comparing, culling out duplications, and collating the requested changes, one of the most frequently requested changes to the as-submitted text of the Constitution was an explicit assurance of religious liberty. So producing the Constitution-plus-Bill-of-Rights that we have today was actually a two-step process of ratify-then-amend:  (1) ratify the Constitution "proper" without the Amendments; then, (2) following the Article V procedure for amending the Constitution, ratify the proposed Amendments.  (The Constitution "proper" had to be ratified first in order for there to be an agreed-upon procedure for amending it.) After the Constitution "proper" had been ratified (by a quorum, absent NC and RI) in 1787, James Madison worked with a committee of the newly elected Federal Congress to agree on and to draft common language for all of what turned about to be twelve Amendments – the original Bill of Rights comprised twelve, not ten, Amendments – and to submit these to the Senate and the House, and ultimately to the States, for approval. Two of the proposed Amendments were disposed of otherwise – a long story in itself – leaving the ten familiar Amendments composing what eventually came to be known as the Bill of Rights to be ratified. The First Amendment was among these.

The Architecture of the First Amendment

The First Amendment is both great literature and great law. As great literature, it is virtually unique in being a piece of eloquent prose that was written by a committee. Sometime get a copy of the Constitution and read the First Amendment aloud. For a moment, bracket off all thought of history and case law. Just pay attention to the cadence of the language. The language of the First Amendment has the austere elegance of a Doric temple: simple in its majesty and majestic in its simplicity.

Three pillars support the structure of the temple of the First Amendment: (1) the “establishment” clause, (2) the “free exercise” clause, and (3) the “abridgement” clause. The “abridgement” clause, in turn, is itself supported by three pillars: (3a) the “freedom of speech” clause; (3b) the “freedom of the press” clause; and (3c) the “freedom of association (or assembly)” clause. Pillars (1) and (2) obviously have to do with religion. But so does the third, though the purview of the “abridgement” clause includes much more than just religion. So because the "abridgement" clause is so much more inclusive, involving religion in critical ways but only implicitly, I only glance briefly at the "abridgement" clause and restrict my discussion to just the "religion" clauses of the First Amendment.

As I said earlier, implicit in microcosm in the First Amendment is the entire turbulent, violent, and bloody history of the relationship between religion and government in Europe, going all the way back to at least the 16th and 17th centuries. Without a single exception, all of the religious wars that for at least two centuries had stained the soil of Europe red with the blood of both persecutor and persecuted had resulted from the amalgamation of religion with state power to establish an official state Church, which then proceeded to persecute all other religious groups; the rebellion of those who were aggrieved by the suppression of religious practice on the part of members of dissident sects; and the government’s proscription of all gatherings for the purpose of dissident religious observance. Thus the three fundamental causes of religious war and violence in Europe correspond one-for-one with the three main clauses of the First Amendment, which was designed to prevent a recurrence in the New World of the religious violence that scarred the Old.

o Congress shall make no law respecting an establishment of religion …

"Establishment" Clause -- First Amendment

As originally intended, the First Amendment only forbade the Federal government to establish an official national religion. Hence the language that begins the First Amendment:  "Congress shall make no law ... " Whether or not to establish an official religion was – again, originally – left as an option for each individual State. (Another way to think of this is that the original intent of the First Amendment had to do with States' rights, not individual civil liberties.) This bifurcation of power into two tiers was a defining consequence of the division between State and Federal power called "federalism":  the reservation of certain powers to the Federal government, and the reservation of other powers to the States. (See the 9th and 10th Amendments.) But this division of power also had the pragmatic effect of enabling anti-Fedealists to support the ratification of the Constitution, because reserving the option of establishing an official Church at the State level was reassuring to those who looked with suspicion upon a strong central government which could usurp States’ rights. At this time in the early Republic, everyone – but especially anti-Federalists – looked upon each State as having a degree of sovereignty approximating that of a nation-state. Some States did establish an official State Church – e.g., the Congregational Church in Connecticut in the very early 1800s shortly after Thomas Jefferson was elected President -- but no State that established a Church went so far as to outright prohibit all non-official sects, and eventually, the suspicion of official Churches outweighed concern about State sovereignty. The very existence of an official Church came to seem too reminiscent of the persecution of dissident sects by the Church of England and the Roman Catholic Church, and the practice was abandoned early in the19th century.

Beginning in 1925 with the Gitlow v. New York decision, the Supreme Court set an important precedent that would have far-reaching implications for the interpretation of the Bill of Rights. Gitlow itself only pertained to the “freedom of the press” pillar of the “abridgement” clause, but the doctrine the Court enunciated in that decision was supported by an argument that could apply equally to the entire First Amendment. In a nutshell, the Court’s opinion in Gitlow set a precedent that cleared the way for the rest of the First Amendment to be interpreted such that the restrictions on Federal power enumerated in the First Amendment – no establishment of religion, no infringement of free exercise, the three parts of the “abridgement” clause – apply to the States as well as to the Federal government. Gitlow held that, at least with respect to the First Amendment, anything the Federal government cannot do, the States cannot do, either. So if the Federal government may not establish a religion, then neither can the States. Ditto prohibiting “free exercise”. Ditto curtailing freedom of the press, speech, and association. The Court arrived at this conclusion by applying the “due process” and “free exercise” clauses of the 14th Amendment to the First, and interpreting the First within that context. If I am free to express opposition to some policy of the government in State A, but am prohibited from expressing that opposition in State B, then I am not equally protected by the law. Similar statements apply in the case of the other two clauses of the First Amendment.

This way of applying the First Amendment to the States by asserting the supervening context of the 14th Amendment is known technically as “incorporation”, i.e., in legal language, one talks about “incorporating” a given Amendment "against the States". Willy-nilly, over the next several decades after Gitlow, each of the rights enumerated in the Bill of Rights – with a few exceptions, e.g., jury trials in civil cases are not required in all States, though "the Devil is in the details" here – would be incorporated against the States, the latest such incorporation being the decision of McDonald v. Chicago in 2010, concerning the right of individual gun ownership, which made explicit the incorporation of DC v. Heller (2008) against the States. (Note that it only makes sense to talk about incorporating the first eight Amendments in the Bill of Rights against the States, because Amendments 9 and 10 already pertain to the States.) Gitlow was a watershed moment in constitutional interpretation, because it reversed a whole string of case law beginning with Barron v. Baltimore and extending through the “Slaughterhouse” cases, in all of which the Court asserted that the Bill of Rights – except for the 9th and 10th Amendments – properly apply only to the Federal government and not to the States. Gitlow changed all that 180 degrees for all of the First Amendment, and for many -- though, again, not all -- of the Bill of Rights provisions. Now, in the post-Gitlow era, the Constitution rules out any establishment of religion, any prohibition of religious practice, or any violation of the “abridgement” clause on any level of Government, Federal, State, or local. (Of course, the government can still enforce, e.g., sanitation laws in the ritual slaughter of animals.  But such cases are cases of enforcing sanitation laws, not enforcing laws "theology laws" or "religious practice" laws.) So everything said about the First Amendment from this point on should be understood as applying to all levels of the government.

The Framers – primarily James Madison for the Bill of Rights – phrased the opening clause of the First Amendment very carefully. Individual words are critical. Note that the “establishment” clause does not say “Congress shall make no law establishing an official Church” or “Congress shall make no law establishing an official Religion”, but “Congress shall make no law respecting an establishment of religion” (boldface added). This begs two questions immediately:

o What does “respecting” mean?

In the case law pertaining to the “establishment” clause, the prevailing interpretation seems to indicate that the “establishment” clause prohibits the government, not only from explicitly establishing a state Church or a state religion, but also from making any law which, however indirectly, however obliquely, however incidentally, and independent of any explicit intent, has the effect of privileging any religion, any sect, any theology, or any body of religious doctrine over any other such religion, sect, theology, or doctrine. In other words, the “establishment” clause prohibits, not only a law saying, for example, “The official Church of the United States shall be the Missouri Synod Lutheran Church”, but also any law whose effect so much as tends toward, or in any way "flirts" with, partiality or favoritism toward any such denomination or religious tradition.

There are multitudes of examples, but two will suffice:

o In the opinion in Everson v. Board of Education of Township of Ewing, opinion, Mr. Justice Robert Jackson wrote (boldface added)

The [First] Amendment’s purpose was not to strike merely at the establishment of a single sect, creed, or religion … Necessarily, it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.

o In McGowan v. Maryland, Chief Justice Earl Warren asserted (boldface added)

But the First Amendment, in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a broad interpretation … in the light of its history and the evils it was designed forever to suppress.

o What does “establishment of religion” mean?

The only kinds of state aid consistent with the “establishment” clause are types of aid that impartially benefit the larger community and that promote purely secular purposes in which the government has a compelling interest, e.g., giving church property police and fire protection. (In an important "establishment" clause case, Lemon v. Kurtzman, in 1973, the Court ruled that governments can aid in the purchase of, e.g., textbooks for parochial schools, provided that the material serves a secular purpose not connected with religious doctrine -- e.g., math textbooks, since there is no such thing as "Catholic math" or "Presbyterian math" or "Buddhist math".  But even in such potentially permissible cases, the government is obligated to avoid what the Court called "excessive entanglement" with religion. These criteria came to be known collectively as the "Lemon test".)  Regarding such secular protections and advantages, Justice William O. Douglas wrote in Zorach v. Clauson

[If such non-religious protections / services were forbidden, m]unicipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution.

So if the church building is burning down, it is constitutionally permissible for the local fire department to put out the blaze, since extinguishing the fire does not involve the government in matters theological and serves the government's secular compelling interest in not allowing fires to burn out of control in the community. Ditto the police protecting worshippers from being mugged going to and from church. Likewise, it would be consistent with the “establishment” clause for local municipally owned utilities to provide electrical, gas, water, sewer, etc. service to religious organizations. These latter functions do not constitute “establishment of religion”, and, in fact, denying them to religious organizations would most likely constitute “facial” examples of effectively “prohibiting the free exercise [of religion]”.

o … or prohibiting the free exercise thereof …

freeexercise2As with the “establishment” clause, the “free exercise” clause prohibits, not only the outright proscription of religious meetings, but also any law which constitutes an excessive and onerous burden to religious observance. Since 1963, this issue of to what extent, if any, the government may burden “free exercise” has been the subject of a tug-of-war between Congress and the Judiciary. In a landmark case, Sherbert v. Verner, in 1963, the Supreme Court ruled that, while it is permissible under certain especially exigent circumstances for the government to burden free exercise, such restrictions will be subject to strict scrutiny by the Court on appeal. (E.g., a city government could presumably burden the free exercise of police officers and fire fighters by requiring that they work on Saturday.) The case concerned rejection of an unemployment compensation claim by a member of the Seventh-Day Adventist church who refused job opportunities that required her to work on Saturdays. Her claim for unemployment compensation was rejected because she turned down these job offers. She filed suit, alleging that making her unemployment claim contingent upon accepting a job that would violate her religious beliefs placed an unconstitutional restraint on her “free exericise”-clause rights. The Court agreed. From this case emerged the so-called “Sherbert test”: does the government, at any level, have a compelling interest of sufficient urgency to justify curtailing a person’s free exercise of religion? On the other hand, even First Amendment "free exercise" rights are not absolute.  In the case of United States v. Lee, Amish craftsmen objected to the requirement to pay Social Security taxes, a practice that violated the Amish religious mandate to isolate themselves from the surrounding society.  The Supreme Court acknowledged that, yes, the imposition of FICA taxes does indeed burden Amish religious practice, but that, like all systems of taxation, FICA payments must be uniform in order for the system to work.  Granting exceptions would render the system unworkable and would result in the Social Security system becoming insolvent for lack of funding.  Therefore, the Court concluded, the Federal Government has a "compelling interest" that supersedes Amish religious observance, because granting the Amish an exception would set a precedent that would render Social Security unworkable for everyone, not just for the Amish. However, the period from about 1960 to 1990, sometimes referred to in the literature as "the Verner era," was marked by the Federal courts' common-law practice of presuming in favor of "free exercise" unless the Government, as in the case of Lee, could cite a "compelling governmental interest" of such exigency as to supersede "free exercise" considerations.

However, another landmark case – Employment Division v. Smith in 1990 – all but eliminated the common-law strict scrutiny practice articulated in Sherbert, and allowed just rational-basis review of claims of “free exercise” infringement in the case of generally applicable laws, i.e., laws that, while perhaps occasioning the burdening of religious practice, nevertheless evinced no invidious discrimination against particular religious groups. Smith marked the end of the so-called "Verner era".  Under Smith, the government would have a much easier time restricting someone’s free exercise of their religion. In response, Congress passed the Religious Freedom Restoration Act (RFRA) of 1993, which essentially made the "Verner era" presumption in favor of free exercise explicit by writing that practice into law. (Congress also attempted, as part of RFRA, to mandate that all Federal courts use strict-scrutiny standards of judicial review in adjudicating "free exercise" cases. However, the Court invalidated this requirement by asserting a separation-of-powers conflict, ruling that Congress may not encroach on the prerogative of the Judiciary by legislating level of scrutiny.) The language of RFRA says that a given law may supersede "free exercise" rights only on condition that (1) the Government demonstrate a "compelling governmental interest" of sufficient exigency, and that (2) even then, the Government must employ the "least restrictive means" to achieve even goals that are legitimate under criterion (1). RFRA has the Verner-era-like effect of presuming that a religious person or group has "free exercise" rights, and placing the burden of proof on the Government to demonstrate otherwise in any given case.  The most recent RFRA case was Burwell v. Hobby Lobby, in which the Court ruled that, while the Government does indeed have a "compelling ... interest" in seeing that employees are provided access to contraceptives, the Affordable Care Act, in mandating certain birth-control means, did not employ the "least restrictive means" and so imposed on the religious practice Hobby Lobby's owners an unacceptable burden.

The First Amendment is very much and very exuberantly and very obstreperously alive.

Remedying a Common Misunderstanding

 Regarding both the “establishment” and “free exercise” clauses, many conservative Christian religious groups advocate for a far greater role for religion in the civil law of the Nation by pointing out, first, that all the Founders and Framers were religious believers of some type or persuasion, and secondly, that the Founders’ and Framers’ ascription of critical importance to religious belief is amply substantiated by many quotes from letters, journals, and various public statements. Consequently, conservative Christians often conclude that, in view of the importance the Founding generation attached to religion, specifically, the Christian religion, that therefore America properly is, and should be, a “Christian nation”, not only as a matter of culture, but also as a matter of civil law.


What this argument misunderstands is the distinction between personal statements of opinion, and even statements of opinion on the part of government agencies, and the civil law. For example, there has been a lot of concern expressed on the part of various government officials and entities about the incidence of obesity in the American population, and many admonitions on the part of medical professionals that Americans need to eat less sugar, exercise more, etc., etc., etc. But these admonitions are advisory only and do not – and should not -- have the force of law. Despite urgent recommendations to not eat saturated fats, sugar, etc., and to adopt a habit of vigorous regular exercise, no one at any level of the government has attempted to legislate McDonald’s and Pizza Hut and Starbucks out of business, nor is there going to be a cadre of “jock Nazis” verifying that people are working out at a gym. Advice is, by definition, not compulsory.

It is similar with the Founders’ and Framers’ recommendations regarding religion:   that they recommend religious belief and practice does not translate into binding law. Even if it did, there would be no way to implement these recommendations in a de jure sense without specifying to which system of religious belief Americans should subscribe. And any attempt to select such a creed and render it compulsory through legislation would immediately founder on the rocks of the “establishment” and “free exercise” clauses. After all, the reason the two “religion” clauses were written into the First Amendment in the first place was in order to avoid the kind of religious strife that had devastated Europe for the two centuries prior to the Founding. The Framers were square-jawed determined that the religious warfare that had laid waste to vast tracts of the Old World would not be imported to the New.

Afterword and Personal Reflection

 Several years ago, I was on a business trip to Washington, DC, and, as is my habit whenever I visit the City, I made it a point to stop at the National Archives on the northwest corner of the intersection of 7th and Constitution. I wanted to pay my respects to the three great Documents: the Declaration of Independence, the Constitution, and the Bill of Rights. I entered the Rotunda of the Archives, and, as always, was impressed by the reverent hush that fell over the crowd of fellow visitors when they entered the dim interior of the building. Typical American tourists, they had been laughing and joking good-naturedly on a sunny morning as they waited their turn to enter – fortunately, the crowds always move pretty quickly at Archives – but when they entered the Rotunda and saw the Documents in their heavy glass-and-metal cases, even the little kids spontaneously fell silent.

National Archives -- Washington, DC

I walked up to the cases, ooh’ed and aah’ed at the Documents along with my fellow tourists, as I always do on such occasions, and moved on to view the other documents on display in the other cases that line the walls around the circumference of the Rotunda on either side of the three main Documents. On this particular day, one document stopped me in my tracks as if I had hit a concrete wall. The case displayed an original copy of an 1821 Supreme Court decision, Cohens v. Virginia, but that is not what stopped me cold. Rather, what slapped me upside the head on this occasion was an ordinary three-by-five notecard over the case, on which someone, presumably some anonymous member of the Archives staff, had typed the following quotation by Chief Justice John Marshall from the Cohens decision:

The People made the Constitution and the People can unmake it. It is a creature of their own Will, and lives only by their Will.

I stood there stunned and transfixed. In fact, to this day, my throat constricts slightly when I read or write Chief Justice Marshall's words, or recall that visit to the Archives. I don’t know how long I would have stood there, had not an Archives guard gently and politely informed me that I should move along, because I was standing there blocking the people behind me. So I moved on. Outside the Rotunda, I sat down on a marble bench. I discovered that, despite having read them only that one time, I could remember Chief Justice Marshall’s words verbatim. Just to be sure, I walked back inside the Rotunda and read the words on the notecard again. Yes, I remembered it correctly. I walked back outside and sat on the marble bench again, simultaneously exhilarated and terrified by the words on that little card. I think my vision actually misted over a little. The scales had fallen from my eyes.


Because I realized that what I was seeing in the Rotunda in that big glass-and-metal case was not the real Constitution. The real Constitution does not exist in ink written on parchment. The real Constitution exists in the will of the American people. Nowhere else. We can make it. We can unmake it. And we do. One or the other. Every day. All of us. Every day we, each of us – not just the “political class” in Washington, DC, not just the courts, but “We the People” – decide, in thousands of small ways, whether we will make the Constitution or whether we will unmake it. Will we attempt to abrogate the First Amendment, the “due process” clause of the Fifth, the “due process” and “equal protection” clauses of the Fourteenth, the "native born" citizenship declaration in Section 1 of the 14th Amendment, the “cruel and unusual punishment” clause of the Eighth, etc., and substitute in their place the idiosyncratic ideological convictions of ourselves, our party, or our church? Or will we defer to the Constitution and to the collective will of the People expressed therein and afford those rights and those protections even to people we don’t like and with whom we disagree – in fact, especially to people we don’t like and with whom we disagree?

Declaration of Independence, Constitution, Bill of Rights

In the run-up to the American Revolution, Thomas Paine wrote in Common Sense “We have the power to begin the world anew”. He could also have added “We also have the power to end it”. The US Constitution is a finite and temporal creation of human beings. It can be revoked in a single generation. One act of selfishness at a time. One misplaced priority at a time. One act of bigotry at a time. One spasm of xenophobia at a time. One moment of historical amnesia at a time.

Or it can endure for another thousand years.

We ourselves decide.

James R. Cowles

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