Congress shall make no law respecting an establishment of religion,
Or prohibiting the free exercise thereof
U.S. Const. amend. I
Whether in some high school government class or some middle school social studies class, the American youth are exposed to the founding documents of the country in which they are citizens, typically starting with the constitution or declaration of independence and branching out from there. Also, typically within the same classes, these students are taught that the original Europeans that colonized the land that would become the American colonies did so to escape religious persecution. Therefore, the need for religious freedom was a major ingredient for the foundation of the country. However, it wasn’t an all-encompassing religious freedom for all that some seem to believe. When not infringed upon, the establishment and free exercise clauses of the first amendment fix this issue.
Establishment Clause
The freedom of religion, as stated in the first amendment, really has two separate clauses: the Establishment clause and the Free Exercise clause. The Establishment clause is the first phrase in the amendment which reads Congress shall make no law respecting an establishment of religion [1]. In this context, the establishment of religion means that a church is recognized by law as the official church of the state. Typically, this grants special privileges to this church, sometimes even direct government aid. Prior to the revolution, a few of the colonies did have established churches where some of the privileges assumed by the church included stipends for the church’s clergy funded from public taxes and marriage could only be performed by that church’s clergy. Also, from the perspective of the citizens, attendance to religious services were sometimes mandatory and if they refused to be a member of the state established church, the citizen would be excluded from public entities such as universities, the military, and other civil services.
Make note that the Establishment clause prevents congress from drafting legislation that would legally bind the church and state in anyway, it does not however, say anything about churches that were established prior to the ratification of the first amendment. For example, the Congregational church was established in New Hampshire, Connecticut, and Massachusetts until 1817, 1818, and 1833, respectively[2]. That being said, after its ratification, no American state legally bound itself to a single church or denomination in such a way that would grant that church systematic public assistance. Thereby creating the separation of church and state that is so familiar today.
Free Exercise Clause
The second clause within the first amendment that also pertains to religion is the Free Exercise clause. This clause prevents the government from passing any legislation that prohibits a citizen from freely practicing, holding, or changing their religious beliefs according to the will of the individual’s conscience. However, the interpretation of this clause can be pretty complicated as the practicing of religion usually involves rituals or conducting certain actions and the legality or morality of these actions can be questionable. An example of this would be polygamy, the practice of being married to more than one person at a time, which was the basis of Reynolds V. United States (1878) where its prosecution under federal law was scrutinized. As stated in this case, “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.”[3]
Clearly, this sets a distinction between two different interpretations of what exactly the free exercise of religion means. On the on hand, taking the language of the clause literally, free exercise involves action as well. Maintaining the same example, this means that the government is not allowed to draft legislation that prohibits polygamy. On the other hand, given the statement from the case itself and how the clause was interpreted by that judge, the government should be allowed to restrict actions, even those based on religious principles, if those actions are deemed immoral by the general public. It is due to nuances like this that we will keep what the founding fathers might have intended (by studying relevant historical documents from before ratification) and our interpretations of their work (court cases after ratification) separate.
Why is religious freedom so important?
So why do we even care about the nuances of religious freedom and where exactly is the government allowed to regulate it?
At an evolutionary level, humans are tribal, and we separate ourselves based on our beliefs. It is human nature to want to belong to a group because throughout history that meant survival. This manifestation of self-segregated groups comes from a sense of identity. Therefore, when you persecute someone based on their religion, in a way, you are directly attacking their identity itself. This tends to not sit well with people, to say the least.
Even though religion seemingly plays a much smaller role in the average American’s life than it did in the late 18th century, this concept still needs to be discussed as it does not pertain directly to only religion. The reasoning derives from the sense of self, a person’s identity, it is just that during the era of our nation’s founding that was typically through religion. Nowadays it could be argued it is more through politics, but regardless, this sense of identity is a necessary aspect of human nature.
That being said, religious freedom is a requirement for a diverse society. By definition, for a society to be diverse, there must be many groups that vary in characteristics, whether that be religion or something else. Due to the establishment clause, the government cannot restrict the nation to a single denomination. Therefore, preventing a homogeneous society to be the only possibility on aggregate total. So, in a way, the establishment clause allows for the possibility of a very diverse, heterogenous society with various religious beliefs and therefore identities.
Along this same line of reasoning, the free exercise clause provides an incentive for these diverse groups of religions or identities to interact with one another, giving the society an opportunity to thrive. This clause requires a degree of religious tolerance on part of the government, to what degree depends on how this clause is interpreted.
Final words
I do not pretend to know the answers to these nuanced questions which I am posing in these posts. That illuminates the purpose of these posts themselves. There is a reason these discussions are still taking place, even after around two and a half centuries of the ratification of the United State Constitution. However, one thing is for sure, understanding the historical context and meaning of these documents is pivotal in understanding the author’s intentions. There is a reason the United States Constitution is one of the oldest constitutions still in place on the planet. Which is amazing considering how difficult it is to keep a society together, just study geopolitics for more than a week and that will be evident. Obviously, there were some times of turmoil (i.e., the civil war), but with a few amendments, the original document is still here which shows that the founding fathers were probably on to something.
To your wealth and future,
James Forsythe
The beginning of a series
https://jamesdforsythe.com/uncovering-the-principles-of-a-free-nation/
Bill of Rights
https://jamesdforsythe.com/why-is-the-bill-of-rights-so-important/
[1] U.S. Const. amend. I
[2] https://www.mtsu.edu/first-amendment/article/801/established-churches-in-early-america
[3] Reynolds v. United States, 98 U.S. 145, 162 (1878)
