Saturday, June 12, 2010

What the Constitution Has to Say About Religion in America

In light of my rabbi's upcoming Adult Education course entitled "Separation of Church and State: How Hard Should Jews Push," I have decided to do a blog series entitled "Religion in America."  For the next two weeks, I will have various blog entries surrounding a myriad of topics, including prayer in school, whether Christmas should be a federal holiday, and the display of the Ten Commandments on government property.

Before we begin delving into these topics, however, we need to have a legal basis upon which we support ourselves.  In this country, the legal document with the most authority is the United States Constitution.  As far as I am concerned, the Constitution is the most brilliantly written secular, legal document in history.  It protects the freedoms of the people while giving the government the minimal amount of power so that society can properly function.  Therefore, we must then ask ourselves, "what does the Constitution have to say about religion?"  The most relavent section of discussion is undoubtedly the First Amendment.  The text is as follows:

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

From the Constitutionalist standpoint, there are two clauses: the Establishment Clause and the Free Exercise Clause.  The Establishment Clause is just that--to make sure that an official religion was not established.  For time's sake, I will further review the concept of "separation of church and state" in my next entry.  The reason why the Founders of the Constitution did not have such a broad take on the Establishment Clause is because it would be a violation of the Free Exercise Clause. 

Some might believe that the Free Exercise Clause only covers belief systems.  However, both the Founders and various Supreme Court rulings over time have found that "free exercise" applied to religious practice, as well.  However, the Free Exercise Clause is not a carte blanche for "anything goes."  In regards to freedom of speech, you cannot yell "Fire!" in an open movie theater.  And with respects to the Second Amendment, we prohibit felons from possessing fire arms.  As a society as a whole, we find that some freedoms need slight curtailing so that overall freedom [of religion] can be maintained.  Two such cases that come to mind are Reynolds v. United States (1879), which banned the Mormon practice of polygamy, and Employment Division v. Smith (1990), which declared that a generally applicable drug law applied to Native Americans who would typically use peyote for their religious services. 

If one needs more clarity on the balance between Establishment and Free Exercise, one only need to look towards the Northwest Ordinance, which not only was drafted within the same time period of the Constitution, but approved by the very same Congress that approved the Constitution.

I will conclude with a couple more passages that are relevant to "religion in America."  The first is Article Six, Section Three, which states:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

My secular and liberal friends think that the fact that there was no religious test to get into office meant that government should be absolutely separate from religion, but what they fail to realize is that most states at that time had official state religions.  Therefore, the implementation of this article was more pragmatic genius than it was a stab against religion.   

Finally, we have the Fourteenth Amendment, and to be more specific, the Due Process Clause, which states:

....nor shall any State deprive any person of life, liberty, or property, without due process of law....

The Due Process clause is of value.  As previously stated, states used to have official religions.  Now with the Due Process clause, such an occurrence can never happen, and religious freedoms are now also protected on the state level.  It is because of this clause that most of the Supreme Court cases surrounding the theme of religion in America are on the state level.

Now that we have sufficient Constitutional background, I only find it fitting that the next topic of discussion is what the Constitution does not say, mainly the topic of "separation of church and state."

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