The Free Exercise of Religion in America

The following is a submitted assignment from a class I am taking on the United States Constitution which I thought this audience might appreciate:

The First Amendment to the Constitution of the United States reads as follows:

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 (“The Constitution of the United States,” Amendment 5).

Arguably, and to various degrees, each clause of this amendment has been violated at different points in American history. Freedom of speech is now relegated to approved “zones (Hanna, 2009).” The press has been highly regulated at various points, most notably by the crippled but remerging “fairness doctrine (Almond, 2009).” And groups wishing to assemble to petition their government are required to file for permits which may be rejected arbitrarily (Hanna, 2009).

Perhaps no clause has been more abused and misinterpreted than the “establishment clause,” which restricts Congress from creating a church or restricting the free exercise of religion. Early American history demonstrates a common understanding of this clause which was eventually rejected by the Supreme Court in its landmark Engel v. Vitale decision in 1962, which instigated a shift in the definition of “establishment” from enforcement of a particular religion to the mere mention of anything religious .

Before considering Engel v. Vitale, it is appropriate to consider the context in which the First Amendment along with the whole of the Constitution was written, who wrote it, and what they had to say about it. There may be no better proxy for this investigation than the US Congress, as assembled in 1854 to address objections brought by select plaintiffs against “public religious expressions by legislative chaplains paid for by State budgets (Wallbuilders.org, 2009).” The plaintiffs argued that such religious expressions, funded by government and conducted in a government venue, violated the First Amendment of the Constitution. The resulting House report on the issue found the alleged violation contrived, citing the establishment and perpetuation of legislative chaplains under the tenure of the First Congress, which included many of the very men who framed the First Amendment.

On the 1^st day of May [1789], Washington’s first speech was read to the House, and the first business after that speech was the appointment of Dr. Linn as chaplain. By whom was this plan made? Three out of six of that joint committee were members of the Convention that framed the Constitution. Madison, Ellsworth, and Sherman passed directly from the hall of the [Constitutional] Convention to the hall of Congress. Did they not know what was constitutional (Nicholson, 1854)?

The Senate Judiciary Committee was equally convicted by a plain regard of history, stating:

The whole view of the petitioners seems founded upon mistaken conceptions of the meaning of the Constitution. . . . If [the use of chaplains] had been a violation of the Constitution, why was not its character seen by the great and good men who were coeval with the government, who were in Congress and in the Presidency when this constitutional amendment was adopted? They, if any one did, understood the true purport of the amendment, and were bound, by their duty and their oath, to resist the introduction or continuance of chaplains, if the views of the petitioners were correct. But they did no such thing; and therefore we have the strongest reason to suppose the notion of the petitioner to be unfounded (Armstrong, 1853).

The academic necessity to retain a sensible percentage of original content restrains this author from quoting further; suffice it to say there is no shortage of similar statements, both official and anecdotal, indicating the Founding Fathers and subsequent generations of American civil leaders recognized a distinction between the establishment of an official state religion and the practice or promotion of religion in the public arena. Even Thomas Jefferson, arguably the Founder most antagonistic to religious establishments, indicated through words and deeds his recognition of religion’s role, not just in American culture, but American government. “[The] liberty to worship our Creator in the way we think most agreeable to His will [is] a liberty deemed in other countries incompatible with good government and yet proved by our experience to be its best support.”

The distinction could be articulated as the line between compelling worship through example or argument and compelling worship through penalty of fine, imprisonment, great bodily harm, or death. The intent of the First Amendment’s establishment clause, if the practices and institutions of the men who wrote it are any indication, was to prohibit the latter, not the former. By this standard, the practice of offering a routine, non-denominational, voluntary prayer as part of the itinerary in a public school was entirely acceptable for nearly two centuries between the Founding and 1962. The Engel v. Vitale decision changed all that.

The Supreme Court case resulted when a group of parents took issue with a New York public school district for starting off each school day with a recitation of the following prayer: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.” This generic petition to an unnamed Divine was considered nonetheless unconstitutional by the plaintiffs.

Unlike their congressional counterparts over a century earlier, the justices of the Supreme Court in 1962 ultimately sided with the view of the plaintiffs. The Court’s opinion read:

Because of the prohibition of the First Amendment against the enactment of any law “respecting an establishment of religion,” which is made applicable to the States by the Fourteenth Amendment, state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day – even if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited.

The two key distinctions this decision deals with are denominational endorsement and the voluntary nature of state-sponsored religious exercise. In essence, what the Court said in 1962 is the practice of the New York school district was based on loopholes it had contrived in the First Amendment. Particularly, in finding that the voluntary nature of the prayer made no difference regarding its constitutionality, the Court set a precedent of interpreting the constitutional prohibition on an establishment of religion as potentially including any promotion of religion or engagement in religious activity by the state. This, as clearly evidenced by the history cited by Congress a century earlier, retroactively indicted the very Framers of the First Amendment as flagrant violators of their own law.

Of course, it is not wholly implausible that the makers of law can also be its breakers. Certainly, in more than a few ways, it could be argued the Founding Fathers violated their professed principles in areas such as slavery, women’s suffrage, and a failure to recognize the legitimacy of native tribal government. However, there is some difference between failure to live up to an ideal and violation of an explicit law. It seems sensible to give some weight to the fact none of the men who drafted or ratified the Constitution found their blatant public religious expression in conflict with it. While it is plausible some makers of law can also be its breakers, it is far less plausible that all of them can be thus guilty without any objection or hesitation.

Even as he articulated a concurring opinion in the Engel v. Vitale case, Justice William O. Douglas acknowledged a degree of absurdity in the question before the Court. Douglas recognized the functional similarity between what the New York school district was doing with its morning prayer and how the Court began its business. Likewise, Douglas noted the practice of starting the day with prayer was no different than how the Congress began its sessions. Douglas further cited the relative salary of those officials conducting prayers for the Court and the Congress in relation to the New York teachers presiding over school prayers, along with the relative amount of time devoted to each endeavor, noting, “for me the principle is the same, no matter how briefly the prayer is said, for in each of the instances given the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution.” Yet, strangely, Douglas went from that acknowledgement to ultimately siding with the plaintiffs, perhaps with the intent to provide later leverage for challenges to other religious exercise by government institutions.

In his dissenting opinion, Justice Potter Stewart likewise cited the absurdity of belaboring the New York school district for engaging in an activity which the Court itself, along with Congress and every President from Washington to Kennedy, had engaged in. Stewart berated his colleagues for relying upon precedents in English law and extra-constitutional colonial era cases. But foremost, Douglas honed in on the historical regard for what constitutes an establishment of religion. “I cannot see how an ‘official religion’ is established by letting those who want to say a prayer say it.” Douglas thereby rejected the assertion that the voluntary nature of a state-sponsored religious exercise is immaterial to its constitutionality. Implicit is Douglas’s dissent is an indignant sentiment which seems to say, Of course it matters whether it’s voluntary! Indeed, whether a state-sponsored religious exercise is voluntary seems the only question of relevance regarding whether an establishment of religion has been made. The force of law is the power to compel through threat of fine, imprisonment, great bodily harm, or death. Absent such compulsion, how can it be argued any force of law exists?

Douglas summaries the issue succinctly:

I do not believe that this Court, or the Congress, or the President has by the actions and practices I have mentioned established an “official religion” in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation – traditions which come down to us from those who almost two hundred years ago avowed their “firm Reliance on the Protection of divine Providence” when they proclaimed the freedom and independence of this brave new world.

The impact of the Engel v. Vitale case has been to establish a precedent for finding other state-sponsored religious exercises unconstitutional. There now exists an organization called the Freedom From Religion Foundation which last year brought suit against the presidential administration and other parties in protest of the National Day of Prayer . Their argument is not unlike that supported in the Engel v. Vitale case, that any state-sponsored religious exercise is unconstitutional regardless of its voluntary nature (Freedom From Religion Foundation, 2008).

If one examines the Courts opinion in the 1962 case and cross-references it with modern arguments by groups like the Freedom From Religion Foundation, they will find an argument for implied compulsion where no actual compulsion exists. As articulated by Justice Douglas in his 1962 opinion, “It is said that the element of coercion is inherent in the giving of this prayer… [students in a classroom are] in a sense a “captive” audience.” This view resonates rhetorically with the contrived idea the First Amendment is intended to protect people from religion, rather than its explicit intent to protect the free exercise of religion. It is argued, even though they are not required to participate, the mere presence of a religious exercise in the vicinity of those not participating carries an “element of coercion” which makes it unconstitutional. By such a loose and subjective standard of definition, we may adjust virtually any law or principle to satisfy our whims. Indeed, we have seen a shift from an acceptance of competing thoughts in a marketplace of ideas to an expectation that one’s comfortable chosen paradigm never be challenged. Prayer in school is offensive to those who would not participate, we are told, because of the peer pressure it creates to conform to a majority which does. This is the “element of coercion” to which Douglas referred. What the Vitale case and subsequent laws and decisions based on it have done is elevate such peer pressure to a level on par with state compulsion under penalty of law. This is an absurd notion which ought to have been rejected on its face. The overall quality of our academic, intellectual, and governmental pursuits is adversely affected by a failure to maintain common sense distinctions between social pressure and state compulsion. The Founding Fathers clearly understood those distinctions and did not let their prohibition on the compulsion through force of law intrude upon their right to compel through example.

References:

Almond, Steve. (2009). Who’s afraid of the big bad fairness doctrine? The Boston Globe.

Retrieved November 30, 2009 from http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2009/11/09/whos_afraid_of_the_big_bad_fairness_doctrine/

Armstrong, Robert. (1853). The Reports of the Committees of the Senate of the United States for the Second Session of the Thirty-Second Congress, 1852-53.

The Constitution of the United States.

Freedom From Religion Foundation. (2008). FFRF sues Bush, Shirley Dobson and Gov. Doyle over National Day of Prayer proclamations.

Retrieved on November 30, 2009 from http://www.ffrf.org/news/2008/NationalDayOfPrayer.php

Hanna, Bill. (2009). Jan. 12 trial date set for 2 TCC students’ lawsuit over free speech, Star-Telegram. Retrieved November 30, 2009 from http://www.star-telegram.com/northeast/story/1761248.html

Nicholson, A. O. P. (1854). Reports of Committees of the House of Representatives Made During the First Session of the Thirty-Third Congress.

The Supreme Court of the United States of America. (1962). ENGEL v. VITALE, 370 U.S. 421. Retrieved from http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=370&invol=421

Wallbuilders.org. (2009). The founders and public religious expressions. Retrieved on November 30, 2009 from http://www.wallbuilders.com/LIBissuesArticles.asp?id=121

The Jew, The Unborn, and The Absurd

by Walter Scott Hudson

This week, I published a special episode of the Fightin Words radio program dedicated to the highly controversial and often avoided topic of abortion. I did so because I had recently refined my own perspective on the issue and thought others might find my process challenging. In the past, I have considered myself a strange hybrid of pro-life and pro-choice, believing instinctively and passionately that killing the unborn is wrong, but waffling on whether or not it should be illegal given the murky philosophical and highly personal nature of the issue. A recent experience provided me cause to re-evaluate that position and come down firmly on the pro-life side of the argument. Here I present a summary of that experience for those not inclined to listen to a podcast.

Last week, I stumbled upon a Blog Talk Radio program called We Kill Children, hosted by a man named Jeff. Jeff was in the midst of a conversation with a caller named Steve. Jeff and Steve argued the pro-life and pro-choice positions respectively. As I listened to their conversation, I was struck by the absurd nature of Steve’s arguments and the blatantly self-serving motivation he provided for them.

The primary issue in the abortion debate is whether or not unborn children are human beings with an unalienable right to life. There is no other relevant question. In an affirmation of C.S. Lewis’s assertion that everyone knows the Law of Nature and strives to excuse themselves from it rather than deny its existence, the pro-choice movement does not argue the morality of killing innocent children, but rather denies the nature of the unborn as human. In this regard, Steve was a dutiful example. His first point of contention with Jeff was over the term “abortion,” which Jeff refrained from using. Jeff insisted on using the term “killing children,” which he felt was more accurate. Jeff and Steve sparred with various references as their weapons. Once confronted with the apparent definition of the unborn as children, as indicated in word usage such as “being with child” or “child bearing,” Steve was left with no recourse but to attack the very concept of definition, stating that definitions were arbitrary and dictionaries biased. “Maybe we should just have everything be legal,” he said, “rather than restricting things if there’s no consensus.”

This stood out in my mind as a blatantly absurd comment. If the law was based on a true consensus, none would break it, and there would be no purpose in law. Surely, Steve holds some law dear. For instance, one would find it difficult to imagine he would accept a mugger justifying an attack by citing the lack of consensus on laws against robbery. In order to entertain such an absurd notion, one would need a strong motivation. The mugger’s motive would be personal gain at Steve’s expense. Steve revealed a similar motivation for abortion when considering the alternative of adoption.

It probably would be nice to have more of these mothers – I use the term “mothers;” they’re not a mother yet until they have a child – potential mothers – [give] the child up for adoption. But the thing is… from the guy’s point of view… if the woman doesn’t have an abortion, there’s a 90% chance that, if she says she’s gonna give the kid up for adoption, … if she actually gives birth to the child, she’s actually gonna keep it. From the guy’s perspective, that’s horrifying, because he doesn’t want to be on the hook for child support for 18 years.

As the conversation progressed, this was repeatedly affirmed as Steve’s core concern, that he might be “condemned” to either father or provide monetarily for the care of a child he never intended to conceive in spite of freely engaging in the act of procreation. When challenged on the morality of justifying the murder of unborn children on plainly self-serving grounds, Steve retreated into two branches of justification.

The first was to argue unborn children are not really human beings, and therefore not vested with any right to life. This argument relied on two arbitrary and absurd premises which included:

1) an unborn child is the “property” of the mother, just like one of her internal organs because:

a) the child is inside the mother, and

b) the child is nourished by the mother and dependant upon her for survival

2) at early stages of development, an unborn child does not “resemble” a human being

The second justification Steve evoked was the notion that mothers who abort unwanted pregnancies are “doing society a service” by eliminating potential criminals and “undesirables” from our ranks. Neither of these justifications hold any ground when examined with a cursory amount of reason. So Steve found himself helplessly retreating from one to the other whenever losing ground.

I ended up calling into the show and joining Jeff and Steve’s conversation, as I found myself unable to contain my frustration in the face of such inane rationalization. I addressed Steve’s justifications in turn.

Beginning with the societal benefit argument, clearly no one would accept a similar justification for killing a one-year-old. To do so would place us in the realm of pre-crime, condemning individuals to judgment based on crimes we believe they might commit rather than ones they actually have. Although our society inches ever closer to this travesty of justice with each session of Congress (hate crime, anyone?), we have not yet wholly discarded due process. Furthermore, even if you accept the idea that demographic predisposition to crime justifies preemptive judgment and sentencing, relatively few crimes call for the death penalty. By what rationale could we possibly justify killing people for crimes they may commit, particularly when we have no idea what their crime may be? It is entirely appropriate to ask, in response to such a suggestion, why we bother to jail anyone. If the demographic likelihood of criminal behavior is justification for killing, shouldn’t the actual committing of crime also demand execution? The trend of those in the pro-choice camp to also be staunchly against the death penalty seems inexplicable, until you realize both positions are motivated by a desire to avoid responsibility.

Revealing these flaws in the society-benefits justification led Steve to retreat to the more fundamental point; the unborn are not human beings. Here too, the arguments mine the depths of absurdity. The comparison of an unborn child to an internal organ is based on nothing more than location. The distinction between the two is clear. A mother’s internal organs are part of her organism and present to support her life. She supports the life of her child, an entirely separate organism. Basing the definition of humanity on location is a wholly contrived notion with no purpose outside a desperate justification in this one context. To the point regarding nourishment, one need only highlight the obvious fact that nourishment continues beyond birth, requiring decisively more effort than before. If being dependent on another renders one disposable “property,” then children may be rightly aborted until they move out on their own, the elderly may be rightly euthanized, and those on welfare or receiving any form of charity may be rightly executed by their material masters.

Finally, we come to my favorite rationalization for the unborn-as-inhuman argument; fetuses do not resemble humans. At one point, Steve evoked Hitler to serve his abortion-as-social-service argument, stating that aborting Baby Hitler would have benefited society. In my concluding statement to Steve, I seized upon this example, highlighting the reason he views a hypothetical abortion of Baby Hitler as good is because Hitler grew up to kill millions of people based in no small part on a pseudo-scientific devaluing of their humanity relying entirely on appearance. The large nose, the high brow, or whatever other trait one might choose to focus on clearly indicates a lack of intelligence, or a duplicitous nature, and certainly subhuman status; such were the arguments of the Nazi against the Jew, the handicapped, the crippled, etc. Such is the argument of the abortionist against the unborn. Humanity is not defined by appearance.

For me, the sum effect of this conversation was a demand upon my conscience to take a firm pro-life stance now and in the future. Abortion is a liberty issue. The pro-choice movement has effectively hijacked the concept of liberty and misapplied it to the mother’s capacity to kill her unborn child. In truth, liberty’s stake in the issue has to do with the arbitrary devaluing of human life to justify murder for personal gain. There is no rationalization for abortion that does not ultimately rely upon an arbitrary definition of human life. If we can define human life arbitrarily, then we can value it arbitrarily. And if we can value it arbitrarily, it has no actual value and lays subject to the whim of the strong. Under such a circumstance, it cannot be argued we live in a condition of liberty, for there is nothing barring anyone from arbitrarily defining us as non-human. Josef Goebbels once said, “Yes, [the Jew] is a man. But what sort of a man? The flea is also an animal!” If such logic can be used against the Jew, if it can be used against the unborn, it can be used against anyone. That is why we must demand our public policy be based upon sound reasoning and universal principles which provide incontrovertible definitions.