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The Religion Clause of the 1st Amendment

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  • The Religion Clause of the 1st Amendment

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

    The goal of this thread is to present what I take to be the most persuasive and originalist interpretation of the religion provisions of the 1st Amendment. In all of this I draw on my recollections of the work of Notre Dame professor Phillip Munoz; what is persuasive in this post can be credited to him, and I take the blame for whatever is sloppy or insufficiently cited. Munoz' own paper on this subject can be found here

    Although Madison, Jefferson, et al. undoubtedly had effects on legislation and public discourse about religion's place in the American commonwealth, but their opinions were not universally accepted, and I think it reckless in any case to interpret the 1st Amendment as an ideological statement rather than as a policy statement. I intend to treat what the legislature understood to be the immediate policy implications of the law as the closest thing we can find to authoritative; what they said and did not say about their expectations about the implications of the constitutional amendments they were debating should be instructive. I'm not sure offhand where to find these records online (I have them in a book), so I'll just summarize:

    With respect to establishment, it clearly does not create any privileges or immunities, and so resists 14th Amendment incorporation. There were several state establishments of religion in 18th century America, usually involving the funding of clerical salaries through taxes. Many states had abolished their establishments by the time they ratified the 1st Amendment, and these wanted assurance that the federal government would not recognize its own official religion, but those who had not (yet-- iirc, almost all would in the following decades) ended the relationship of their government to any structures of church governance wanted assurance that the government would likewise not interfere with the existing relationships. Congress shall make no law respecting an establishment of religion, meaning, plainly, that Congress is not allowed to make any laws about establishments of religion: it is an area of law over which Congress simply has no authority.

    Free exercise: there's really not very much to tell us what the framers meant by this, but it seems as though it was not intended to create any notable exemptions. Our biggest clue comes not from the 1st Amendment debates, but the debates surrounding the 2nd Amendment, which happened soon after. Earlier versions of the 2nd Amendment included provisions related to the draft, and discussion in the House turned to whether the Quakers should be included or excluded from these provisions and how. No where in this discussion, though, does anyone raise the question of whether the 1st Amendment exempted the Quakers from the draft. The free exercise of religion, in their minds, did not go so far as to create religious exemptions from generally applicable laws.

    Note that I don't necessarily think that these policies represent the best possible relationship between church and state, either in the American context or generally, but I do think it to be the most persuasive interpretation of the 1st Amendment in its original context.

    I will not insist that discussion in this thread focus only on the original context and meaning. If you wish to discuss what you think a good church/state status quo looks like and even want to seek kindred spirits among the founders, feel free to do so, but please differentiate between your own political prescriptions from your interpretation of the text.
    Don't call it a comeback. It's a riposte.

  • #2
    Interesting opening post. There does appear to different understandings of the 1st Amendment, and apparently it has changed over time.

    More comments to follow.
    Glendower: I can call spirits from the vasty deep.
    Hotspur: Why, so can I, or so can any man;
    But will they come when you do call for them? Shakespeare’s Henry IV, Part 1, Act III:

    go with the flow the river knows . . .

    Frank

    I do not know, therefore everything is in pencil.

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    • #3
      "Neighbor, how long has it been since you’ve had a big, thick, steaming bowl of Wolf Brand Chili?”

      Comment


      • #4
        Way too many words...


        Seriously, I'm swamped right now but will get to this in a few days - I already promised a response elsewhere so I have to do that first...

        "He is no fool who gives what he cannot keep to gain that which he cannot lose." - Jim Elliot


        "Forgiveness is the way of love." Gary Chapman

        My Personal Blog

        My Novella blog (Current Novella Begins on 7/25/14)

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        • #5
          Originally posted by Spartacus View Post
          Free exercise: there's really not very much to tell us what the framers meant by this, but it seems as though it was not intended to create any notable exemptions. Our biggest clue comes not from the 1st Amendment debates, but the debates surrounding the 2nd Amendment, which happened soon after. Earlier versions of the 2nd Amendment included provisions related to the draft, and discussion in the House turned to whether the Quakers should be included or excluded from these provisions and how. No where in this discussion, though, does anyone raise the question of whether the 1st Amendment exempted the Quakers from the draft. The free exercise of religion, in their minds, did not go so far as to create religious exemptions from generally applicable laws.
          Supposing that we have here airtight proof that the Free Exercise Clause was intended to still leave Quakers required to submit to the draft:
          It still leaves a big question regarding where they intended the line to be drawn. It doesn't tell us where they drew the line between laws the Clause prohibits and laws it does not prohibit. It also doesn't tell us whether it was intended to require/permit exceptions. And if it permits no exceptions, then in case of conflict between religious exercise and a statute, could that cause the entire statute to be prohibited, instead of creating an exception? And is that different in different cases?

          People since then have tried to draw the line different ways. My understanding is that the "generally applicable law" line is a more recent invention (since 1990). At other times SCOTUS drew a different line using "compelling interest" and least restrictive means. Both of those lines are argued to permit conscripting the Quakers (in the one case arguing that the draft is "generally applicable", and in the other case arguing that the draft is a "compelling interest"). But they are different lines. The "compelling interest" test is more likely than "generally applicable" to create what you might call "exemptions." I'm not arguing that either of these examples is the correct interpretation of the Constitution. I'm just giving them as examples of different lines that can be drawn that could fit within the evidence you provide. Thus showing that the evidence you provide is not sufficient to define a unique line. And thus is not sufficient to say whether the Clause ever creates "exemptions".

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          • #6
            GTG

            "Neighbor, how long has it been since you’ve had a big, thick, steaming bowl of Wolf Brand Chili?”

            Comment


            • #7
              Originally posted by Joel View Post
              Supposing that we have here airtight proof that the Free Exercise Clause was intended to still leave Quakers required to submit to the draft:
              It still leaves a big question regarding where they intended the line to be drawn. It doesn't tell us where they drew the line between laws the Clause prohibits and laws it does not prohibit. It also doesn't tell us whether it was intended to require/permit exceptions. And if it permits no exceptions, then in case of conflict between religious exercise and a statute, could that cause the entire statute to be prohibited, instead of creating an exception? And is that different in different cases?

              People since then have tried to draw the line different ways. My understanding is that the "generally applicable law" line is a more recent invention (since 1990). At other times SCOTUS drew a different line using "compelling interest" and least restrictive means. Both of those lines are argued to permit conscripting the Quakers (in the one case arguing that the draft is "generally applicable", and in the other case arguing that the draft is a "compelling interest"). But they are different lines. The "compelling interest" test is more likely than "generally applicable" to create what you might call "exemptions." I'm not arguing that either of these examples is the correct interpretation of the Constitution. I'm just giving them as examples of different lines that can be drawn that could fit within the evidence you provide. Thus showing that the evidence you provide is not sufficient to define a unique line. And thus is not sufficient to say whether the Clause ever creates "exemptions".
              I found a website that has the text of the debate over quakers and the militia, so people other than me can look at it: http://www.constitution.org/mil/militia_debate_1789.htm . They considered a few ways of dealing with the Quakers' objection, e.g. saying that no one would be obliged to bear arms "in person," allowing a tax to be levied in place of a draft.

              The Founders didn't have a great deal of diversity of religions to deal with. Although there were some doctrinal and even ethical differences between the various Protestant sects of the early United States, there wasn't much way to tell which denomination people belonged to aside from where they went on Sunday morning. The primary effect of the free exercise clause, if I'm interpreting their situation correctly, was to say that Congress couldn't explicitly outlaw any religion.
              Don't call it a comeback. It's a riposte.

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