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Fearless Philosophy For Free Minds: The First Amendment Explained: Establishment and Free Exercise Clauses

Thursday, February 17, 2005

The First Amendment Explained: Establishment and Free Exercise Clauses

(Part 1 of 2)
The First Amendment of the United States Constitution is perhaps the most misunderstood amendment found in the Bill of Rights. Recent controversies surrounding this most important amendment include: Ward Churchill’s outrageous and despicable comments about the victims of 9/11, Whoopi Goldberg’s firing from Slim Fast for making offensive remarks about the president, The Ten Commandments displayed outside of courthouses, and the existence of ‘under God’ in the Pledge of Allegiance. None of these issues are difficult in light of the First Amendment; people on all sides of the political spectrum chose to ignore its meaning when it suits their needs. As a result, there have been many distortions about what the First Amendment really means; I will do my best to explain it in terms everyone can understand. Before I get into my analysis, let us take a look at the amendment’s actual language.

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 Establishment Clause (Separation of Church and State)

I wish I had a dollar for every time a conservative said: “The term separation of church and state appears nowhere in the constitution.” This is true, but the terms political party, democracy, and ‘checks and balances’ do not appear in the constitution either, yet they are part of the language we use to explain the meaning of various elements found the constitution. Thomas Jefferson was the one who coined the term “separation of church and state” to describe the meaning of the “establishment clause” of the First Amendment. Let’s examine the establishment clause:

Congress shall make no law respecting an establishment of religion
Period. End of sentence. When used in conjunction with the Fourteenth Amendment , ‘congress’ also means any other legal body in the United States “shall make no law respecting an establishment of religion.” The Ten Commandments on government property is in fact an establishment of religion by the government, therefore unconstitutional. With the addition of ‘under god’ in the Pledge of Allegiance , requiring students to recite this phrase in public schools also shows religious favoritism which ‘respects’ or encourages the belief of monotheism versus polytheism or atheism; none of which can be a favored religious belief by the U.S. government.

The Free Exercise Clause

The free exercise clause is what confuses many people who believe erecting manger scenes or displays of The Ten Commandments on government property is an issue of free exercise of religion. Let’s examine the exercise clause (the establishment clause has been purposely taken out for clarity of the exercise clause; my interpretation is in the brackets).

Congress shall make no law…prohibiting the free exercise [of religion].
The key term here is “free exercise,” not government exercise. As we have already established, government cannot ‘exercise’ religion; the free exercise is a right retained by the people (as all rights are except for those enumerated to the federal government in Article I, Section 8). Removing the Ten Commandments from the steps of a government institution such as a courthouse violates no one’s right to exercise and practice his or her religion. If a group of people want to preach and pray on the steps of the courthouse, they have that right to do so according to the exercise clause; this very different from placing a religious monument on government property. In fact, by removing the Ten Commandments from the government property, everyone’s right to practice or not practice religion as they see fit is protected from the government’s attempt to manipulate the public by using religion as a basis to infringe on this right and many others. Besides, which denomination gets to choose which version of the Ten Commandments to use, the Catholic version, Protestant version, or some other translation? Do other religions have equal access to display their creeds on the steps of the courthouse? The best policy is for the government to stay out of these quarrels between religions and let free people exercise their beliefs the way they see fit. The principle author of the constitution and bill of rights, James Madison explained it best: "Religion and government will both exist in greater purity, the less they are mixed together."

Many anti-church/state activists argue that the founders based the constitution on Judeo-Christian values. The truth of the matter is the framers developed a system of government unlike any in human history, and came from many different religious and nonreligious backgrounds. In addition to the First Amendment, Article VI, Clause 3 reads as follows:

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.

Clearly, as a result of religion’s bloody history, the founders wanted a wall of church and state separation; a government neutral to the religious beliefs and practices of the citizens. Inevitably, I expect that I will be sent examples of some of the founders who did want a marriage between government and religion. Patrick Henry was one of them. What you may not know; however is that he was strongly opposed to the passage of the United States Constitution. Fortunately, Henry’s side lost this debate. Others argue that prayers before each session of congress took place from that time to this day and observe several other religious traditions. This is also true. We should also take into consideration; however, that while the delegates agreed that ‘all men are created equal’ and the government was to be ‘for the people, by the people,’ the only people who could participate were white men, some of who owned slaves. The truth of the matter is the constitution was written by wise but fallible men. They were unable to live up to their own ideals, just as we are falling short of these ideals today.

Next week: Part 2 of 2 of The First Amendment Explained: Free speech.


Blogger Stephen Littau said...

Gary, I am glad you asked. For your first question about 'the original intent of the establishment clause,' there is stronger evidence that supports the fact that the founders, though most were Christian, were diverse in their religious beliefs. Thomas Paine, Thomas Jefferson, John Adams, Ethan Allen, and James Madison were all deists. Assuming that I'm wrong on this and you are right, whether the founders believed in Christianity, deism, Judaism, or any other religion is completely irrelevant. The fact of the matter is the First Amendment states that the government will establish no religion; it does not give Christianity any preference of any kind.

As to your second question, the foundation for the moral codes are based in ancient Greece and Roman culture also referred to as Western Culture. The form of government the founders set up was based on such principles as the rule of law, trial by jury of one’s peers, representative government, individual rights, etc. all of these ideals began in ancient Greece, influenced by secular philosophers such as Socrates, Plato, and Aristotle.

If you have ever taken the time to read "The Federalist Papers" you will also discover its authors were excellent students of history and philosophy. They studied known cultures, governments, and history throughout the world and applied the lessons they learned to develop a better system of government. To put it simply, the moral foundations are based on reason rather than religion.

As to whether or not the establishment clause implies that a secular value system is superior to a religious one, I think Madison left that up to the individual to decide rather than have the state dictate what the individual should believe. Madison was also aware of the tyranny religious leaders and mobs of fundamentalist followers are capable of. Values, religious or otherwise, vary greatly from one person to the next. When a majority of believers gain power, there is a strong temptation to impose those beliefs on the non-believing minority; the establishment clause protects all of us against this. Even those who do not believe in church and state separation here, tend to believe in it in other places such as Iraq. I suspect that you are in this group as well.

For further reading on this subject, I recommend the Michael Marriott article “Judeo-Christian Philosophy and the Founding of America” and “The Founding Fathers on Religion” (a compilation of the founders in their own words presented by the Ayn Rand Institute). Both articles are linked to my original post. I would be very interested in your response to each of these articles as well as this post.

3:53 PM  
Blogger Stephen Littau said...

Gary, it seems that our sources contradict one another. The quotes I found do not seem to jive with the ones you found. Obviously, one of our sources is inaccurate. For the benefit of myself and all the readers (this goes for everyone who posts responses to my articles) please cite your sources, especially for quotes. As you may notice throughout my articles I have linked my sources for each 'fact' I use. Don't feel that you must cite websites; books, journals, and other references are even better. Citing your sources strengthens your argument.

Putting that point aside, the more we get into a 'quote battle' the further we get away from my original premise on the establishment clause specifically and the constitution generally.

If what you are saying is true, that the founders based the constitution on the basis of religion, why then did they approve Article VI, Clause 3 (Linked in the original post) which states that office holders will not to be subject to a religious test? As you are probably aware, prior to the constitutional convention, many states required their representatives to belong to a church and pass certain religious tests. If your premise is correct, why did they change this?

Going back to your premise on the original intent of the delegates, if the foundation of the constitution is based on Judeo-Christian values, why didn't they make an exception? They could have just as easily put this in the First Amendment:

"Congress shall pass no law respecting an establishment of religion with the exception of Judeo-Christian beliefs. No single denomination shall be recognized or preferred over the other."

When you have the chance, let the readers know where you found your quotes. I encourage all my readers to do thier own homework and decide theirselves what is fact and what is not.

1:03 PM  
Blogger Stephen Littau said...

Gary, I realized from your last post that we probably have more common ground on this issue than I at first thought. We both agree that the establishment clause does constitute a wall of separation of church and state. I also agree with your statement about the secular movement is going overboard in some cases. I think both sides do.

You may also be surprised that I support vouchers – even for religious schools and I have no problem with students praying in school, singing Christmas carols, or reading their Bible. All of these things are part of the free exercise clause; the part of the First Amendment some on my side of the issue has forgotten or ignores.

My problem is when teachers and administrators lead students in prayer, encourage students to pray, or generally promote one religious idea over another. This is usually where the debate breaks down. When I hear someone saying the ACLU or some other organization is trying to take God out of the school, a key component is usually not revealed: Was the religious practice initiated by the students or by the administration? Depending on what the answer is depends on which clause has been potentially violated. Read my Article I wrote on December 1, 2004 titled “The Battle for Young Minds”. I go into much more detail on this.

I also agree that the reach of the government is far too great. President Bush is trying to cut the federal budget by less than 1% and both Republicans and Democrats are screaming bloody murder! But that’s a topic for another time.

There are a couple of other points I would like to cover but I am unfortunately out of time. I will have to address them perhaps in a future blog, but for now, I will let you have the last word.

1:07 PM  
Anonymous Anonymous said...

Stephen Littau said that

When used in conjunction with the Fourteenth Amendment , ‘congress’ also means any other legal body in the United States “shall make no law respecting an establishment of religion.”

This makes no sense. What government body other than congress has the power to create laws? The establishment clause was refering to congress specifically, not any government body, and not only does it refer to congress specifically, but it further narrows the focus to a specific act of congress, that being the creation of a law. To apply this clause to any other government body is to provide that other government body with power that is not afforded it, the power to create a law. It seems clear to me that the clause is very clear about its application and that is to the creation of laws specifically.

4:14 PM  
Blogger Stephen Littau said...


No other body makes laws? How about your state legislature? How about your local city council? Prior to the passage of the Fourteenth Amendment, states were allowed to restrict freedoms; even those spelled out in the Bill of Rights. Here is the first section of the Fourteenth Amendment:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In other words, no other government body can pass laws contrary to the United States Constitution.

4:31 PM  
Anonymous Anonymous said...


This does not answer my point. When written, the writers had in mind the US congress, and they limited the extent of the clause to the creation of law. When extended to states it would require that the body that creates law is restricted in the same way that the US congress is in its creation of laws. The clause goes no further, but is directed specifically at the creation of law. This is my point.

9:28 PM  
Blogger Stephen Littau said...

Eric, I'm not quite sure what you are getting at but it seems like we are saying the same thing in different ways. You are correct about the original intent. I'm working on part 2 of this series and I will address your question and hopefully expalain my point more clearly. I'm hoping to have it posted by tomorrow. Thanks for the question.

1:14 PM  
Anonymous Anonymous said...

I was going to wait, but decided to clear up where we differ.

I think you are wrong when you say,

"The Ten Commandments on government property is in fact an establishment of religion by the government, therefore unconstitutional."

and further you say,

"With the addition of ‘under god’ in the Pledge of Allegiance , requiring students to recite this phrase in public schools also shows religious favoritism which ‘respects’ or encourages the belief of monotheism versus polytheism or atheism; none of which can be a favored religious belief by the U.S. government."

Constitutionally, there is no restriction to these acts because these acts are not created laws. The clause only pertains to laws. Since the judicial system cannot create laws, there is no way this clause refers to it. And even if it could the clause would only restrict its actions in pertaining to the laws it creates, not any other actions. So, any body of government that does not have the power to create law is not bound by this clause, and those that do create laws are only restricted by the clause in respect to the laws they create.

2:27 PM  
Blogger T. F. Stern said...

I took your test, the one on Separation of Church and State, and would have to point out that I would disagree on the “correct” answer for question #3. You show that there was no mention, answer (a) and that is not correct.

3. How many times does the Declaration of Independence refer to Christianity or Jesus?
a. 0. There is no mention of Jesus, Christ, Christianity, religious persecution, or religious freedom in the Declaration of Independence.
b. 1
c. 3
d. 8

The key word “refer” is a generality and so yes, there are references in the Declaration of Independence to Jesus Christ.

Jesus Christ is also known as the Creator (1)

Jesus Christ is also called the Supreme Judge of the world (2)

Jesus Christ is the author of Divine Providence ( 3)

The question and answers provided would correctly be (C), Jesus Christ was referred to 3 times, 4 if you stretch to include “Nature’s God”, although that is a little too vague.

11:00 AM  
Blogger Stephen Littau said...

Mr. Stern,

I am not the author of the quiz (the quiz is found on the Freedom From Religion Foundation website as well as the link found on the right side of my webpage) but I'll try to answer those questions the best I can.

When the author says 'refer,' he's meaning that there is no direct mention of any of those things. You may interpret the meaning of 'God' or 'Creator' as meaning Jesus Christ, though Jesus Christ is not mentioned. The Jews would certainly disagree with you on that meaning.

I'm pretty rusty on my Bible knowledge but I'm fairly certain that the Bible does not refer to Jesus as being the creator of the world (though I'm not at all familiar with the book of Mormon at all). My understanding is that Jesus is the 'son' part of the trinity (Father, Son, and Holy Spirit) and God the Father is the actual creator according to scripture. Based on this, most Christians would probably disagree with you that Jesus is the creator of the world.

As to your other 2-3 'references,' I'm not as certain but I believe those are also open to interpretation. 'Nature's God' however reflects more of the deistic viewpoint but is still general enough to fit any theistic belief.

1:20 PM  
Blogger Tom Hanna said...

All very well argued, but I think you misunderstand the concept of "establishment of religion". An established religion is one, like the Church of England in Virginia at the time the Constitution was written, which is funded through taxation. None of the examples you cited comes anywhere close to establishing a religion.

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