The framers of the Constitution knew from experience the pitfalls and injustices created by a centralized, state religion. Before the States would ratify a Federal Constitution, they demanded civil liberty guarantees put into place. Thus, we have the Bill of Rights.
The Bill of Rights is not a buffet where one can pick and chose what suits your needs. It is an all or none situation or so it should be that all faith belief systems including non-belief are equally protected under The First Amendment.
In case there is any misunderstanding on the meaning of The First Amendment, there is a complete description including its text, a brief history and pertinent Supreme Court decisions.
Following the First Amendment synopsis is the article that brings to light the group that does not seem to grasp the concept of a separation of church and state.
Text
| “ | 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. | ” |
Background
Main article: Anti-Federalism
Opposition to the ratification of the Constitution was partially based on the Constitution's lack of adequate guarantees for civil liberties. To provide such guarantees, the First Amendment, along with the rest of the Bill of Rights, was submitted to the states for ratification on September 25, 1789 and adopted on December 15, 1791.
Establishment of religion
Main article: Establishment Clause of the First Amendment
The Establishment Clause of the First Amendment prohibits the establishment of a national religion by the Congress or the preference of one religion over another, non-religion over religion, or religion over non-religion. Originally, the First Amendment only applied to the federal government. Subsequently, under the incorporation doctrine, certain selected provisions were applied to states. However, it was not until the middle and later years of the twentieth century that the Supreme Court began to interpret the Establishment and Free Exercise Clauses in such a manner as to restrict the promotion of religion by state governments. For example, in the Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), Justice David Souter, writing for the majority, concluded that "government should not prefer one religion to another, or religion to irreligion."
In 2007, the United States Court of Appeals for the Ninth Circuit, in Inouye v Kemna, ruled that a parolee can not be forced to attend Alcoholics Anonymous meetings as a part of his parole when there is a conflict between the religious belief of the parolee and that of Alcoholics Anonymous.[1]
Free exercise of religion
Main article: Free Exercise Clause of the First Amendment
In Sherbert v. Verner, 374 U.S. 398 (1963), the Warren Court applied the strict scrutiny standard of review to this clause, holding that a state must show a compelling interest in restricting religious activities. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Courtretreated from this standard, permitting governmental actions that were neutral regarding religion. The Congress attempted to restore this standard by passing the Religious Freedom Restoration Act, but in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held that such an attempt was unconstitutional regarding state and local government actions (though permissible regarding federal actions).
Is your faith first-tier or second-tier?
A case currently before the 9th Circuit Court of Appeals in California could establish that some faiths are indeed more equal than others–and that minority faiths are not entitled to First-Amendment protection.
In a previous post, I wrote about Patrick McCollum and his suit to gain equal standing for Pagan chaplains in the California prison system. Currently, only chaplains who represent one of five faiths–Catholic, Protestant, Jewish, Muslim or Native American–can have staff positions and the full access that affords in the system.
A new amicus brief was filed this week by a group called Wallbuilders, Inc. The Wallbuilders brief calls on the court to state that the First Amendment itself does not cover Paganism. Or really, anything but Christianity or some other monotheistic faiths.
According to a statement from Patrick McCullum:
"I originally sued on behalf of myself and Pagan inmates as their chaplain, but about a year later several inmates joined the lawsuit. Together, we claimed that it is unconstitutional for the state to deny the Pagan inmates their religious rights, their religious materials, and their religious services."
"During the course of the case, the CDCR, [California Department of Corrections] other related defendants, and the Assistant Attorneys General who represents them have argued before the court that Pagans are not deserving of equal civil rights as are provided adherents of the preferred faiths. In one of their first arguments to the court, the defendants said that certain “traditional” faiths are first tier faiths and that those faiths were meant to have equal rights and protections under the United States Constitution, but that all of the other faiths, for example, Hindus, Pagans, Buddhists, Sikhs, Mormons, Jehovah’s Witnesses, Jains, are second tier faiths deserving of lesser rights, and therefore are not meant to have the same equal rights and protections under the United States Constitution as the first tier faiths".
"Now, in an amicus brief filed in the Ninth Circuit of the U.S. Court of Appeals in support of the CDCR and the other defendants, an organization called Wall Builders,Inc, which is represented by the National Legal Foundation, has argued that Christianity is the only religion that should be protected under the Constitution or at the very most other monotheistic religions might also be included. They also argue that the term religion only applies to Christianity or monotheistic faiths, and that anyone else, including the Pagans, are not really a religion for the purpose of Constitutional protections".
Recent court cases have found Pagans and other members of minority faiths–Buddhists, Sikhs, Hindus, Jains, Mormons, Jehovah’s Witnesses, Seventh Day Adventists, and otheres–do in fact have First Amendment protection to practice their faiths.
I myself am not a strict constructionist when it comes to Constitutional arguments. I have always thought that the Constitution’s flexibility and openness to interpretation in the face of societal change was its greatest strength. I doubt that even men as visionary as the founders would have imagined a 21st century American society in which people of such diverse ethnicities and religious faiths live together in as much harmony and tolerance as we manage.
I am certain that they were well aware of the price of religious intolerance. The English Civil War was barely a century behind them when Independence was declared and the Constitution framed. In living memory as well would have been the Witch Trials of Salem. And the establishment of Pennsylvania and Rhode Island as havens for Quakers and other religious dissenters. And the Pilgrims, leaving for the Massachusetts Bay Colony to escape an Anglicanism they found too liberal. And the Cavaliers, heading for Virginia to escape Cromwell.
Just because the framers didn’t know of a religion or its practitioners doesn’t mean the Constitution can’t protect it.....
ORIGINAL ARTICLE
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