Friday, February 4, 2011

First Amendment III: Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
There are two important points to this part of the amendment:
1) "Congress shall make no law respecting an establishment of religion": The interpretation of this clause hinges on the meaning of the word "establishment." What does it mean to "establish" a religion. Of course, when the question is phrased like that, the answer is fairly obvious: establishing a religion is exactly what it sounds like, putting together a new religion. (One can't very well establish an old religion, it's already been established.)
So, at the base grammatical level, the amendment is fairly clear, Congress may not establish a religion. It may presumably establish other entities, or interact with a religion which has already been established, but establishing religion is forbidden. States, on the other hand, by implication may establish religions (and did fairly often in the colonial times and early republic).
The practical application of this amendment, therefore, is that
  • Congress may create no "Church of America", presumably using the Church of England as a model most clearly NOT to be followed. This explains the general acceptance of this amendment by most dissenters (who always feared the imposition of Anglicanism, which was attempted at random intervals by the British government throughout the colonial period), and by most liturgical denominations (who always feared that the Evangelicals would outlaw Anglicanism and Catholicism in the nation as they had, for a time, in some of the New England colonies).
  • Congress may interact with religion in ways that do not involve establishment. A prime example of this is the tax-exemption given to churches. While this has been standard in the Western world since the 12th century, it certainly shows that "establishment" does not mean "no interaction whatsoever" in the American system.
  • States may establish religions. The purpose of the First Amendment is to restrain Congress, and Congress alone.
 2) "Congress shall make no law... prohibiting the free exercise thereof": As with the first phrase, this too is fairly grammatically clear. "Congress shall make no law... prohibiting the free exercise" of religion is not vague in its meaning. Congress cannot legislate where you go to church, how you worship, or in what practices you participate as an expression of your religion.
The practical implications of the Amendment:
  • Congress may not outlaw religions or religious practices. Just as it may not establish a religion, it may not de-establish one either.
  • Congress may not pass laws which punish an individual for his religious practices.
The clear objection is going to be, what about the extreme religions? Does this mean the United States Constitution allows for human sacrifice, animal mutilation, and child abuse? Would religions that treat women as objects to be abused and humiliated be allowed to thrive?
The answer of course is "no", but it is an answer that hinges not on twisting the words of the Amendment to fit our own consciences, but on the word "Congress." Congress may not restrain religion, fortunately we have at least 50 other institutions which may. Of course, some will do this better, some worse, and some not at all, but it is not the function of the Constitution to prescribe a perfect answer to the ills of society. Rather, it is the job of the Constitution to provide restraint from the tyrannical excesses of government and to provide the government with sufficient authority to restrain the wicked excesses of its citizens. In this case, if properly followed, religion and religious freedom become local issues, to be debated and battled on a personal level amongst the citizens who are best (and least) capable of deciding what works for the community.

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