What DOES the First Amendment Say?

Once again, another court case is on the books regarding separation of church and state. This time due to high-school officials taking down a copy of the Ten Commandments from a student’s locker. Fortunately, this was reversed and the student is now allowed to post the Commandments on his locker again.

If only people could take a moment to think about not only what the First Amendment entails, but also what it doesn’t entail, we would see fewer of these types of things happening. It goes further than the idea that some people want to abolish religion altogether. Perhaps the point of my frustration with this is the lack of thinking that goes into these things.

One thing that seems to be seriously lacking in our schools today (and our society for the most part) is critical thinking skills. So many people buy into rhetoric without ever examining pesky little things like facts. For the record, a student at a public school is not violating any church/state separation issues if they post religious statements, sing religious songs, wear clothes with religious symbols or messages, talk about their faith or anything like that.

To be clear about this, let’s just take another look at what the First Amendment says as it seems that a reminder is in order, again:

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.

So, let’s go ahead and think this through together using this latest story as an example. A high-school student posts the Ten Commandments on his locker. Is the student a member of Congress? No. Is he attempting to “make a law respecting an establishment of religion?” No. Is he “prohibiting the free exercise thereof?” No.

In fact, if anything, the school was violating the First Amendment when they actually did attempt to prohibit “the free exercise” of the student’s religion. When we don’t understand how the First Amendment “erects a wall of separation between Church and State” (to quote Thomas Jefferson, who coined the term), then we start to misunderstand what constitutes a violation of this amendment.

I would go so far as to say that prohibiting teachers from talking about their faith in the classroom is not, in fact, a violation of the First Amendment according to the verbiage of the amendment itself. Now, I would agree that public school teachers should be careful to avoid this even if, strictly speaking, it doesn’t violate this amendment. There are a number of reasons for this and I’m not sure many people would argue about that point.

But, to be honest about it, a public school teacher is not Congress. A public school teacher who discusses their faith in the classroom is not making a law establishing a religion. Nor does it (necessarily) prohibit the free exercise thereof. While I think it’s good for them to avoid discussing their faith in the classroom, someone please help me understand how this actually violates the First Amendment.

The Amendment does not state that a court building cannot display the Ten Commandments. It does not say that a public official cannot discuss their faith. It does not say that religious statues, plaques, texts, images or anything else cannot be erected, displayed, posted or otherwise visible on government owned property. It just says that Congress cannot make laws about it.

What it means, in a nutshell, is that Congress can’t make anyone adhere to a particular religion, nor can the keep anyone from adhering to one. That’s all. Nothing more. We need to call it out when people try to claim that the First Amendment means something that it does not mean. What follows from the First Amendment is very clear and, sadly, often misunderstood, misconstrued or misrepresented by people who should know better.

Rant complete. Thank you for listening.

Grace, love and peace.

P.S. Just read a from Baltimore. Seems like David Rocah from the ACLU has not yet figured out that “parents and students” is not Congress. Nor has he figured out that their own private decision to “peaceably assemble” and exercise their beliefs is protected by the very amendment he claims prevents them from doing so.

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2 Comments

  1. @Doug,

    I will freely admit that I am not an expert on the intricacies of the government. My point was not to proclaim an overly-literal, wooden interpretation of the term “Congress” but rather to show that the point of the amendment was to prevent any laws or ordinances from being put in place by the government that would endorse (or prevent) the free exercise of faith by citizens.

    I could be wrong, but it seems to me that the President does not have the authority to make any order or proclimation that would effectively establish or prohibit religious practice. So, even if he were to make an Executive Order that Americans should all be Jewish, for example, the order would not be backed with authority as the Executive Branch of government, as you point out, carries out the law but does not establish law.

    We saw an example of such with the health care bill when the President gave an EO stating that public funds should not be used for abortions, yet that EO was completely impotent.

    Even without the 14th amendment (though I understand the need to articulate the fact) I would have assumed the extension of the First Amendment as you describe.

    My problem is with the idea that people will cite violation of the First Amendment in cases such as I described here or for a Christian recording artist performing on a military base and other such things.

    The fact is, although (as you point out) in this case the suit was dropped, continued law suits citing First Amendment violations that really aren’t begin to affect perception of what the First Amendment is and is not. It also begins to affect the way such things will be interpreted in the future…particularly by people who will one day be in positions to ajudicate on such matters.

    The children today who hear such false representations regarding what the First Amendment is about are going to one day be United States Supreme Court Justices who will rule on these matters after having been indoctrinated with a false understanding of how this applies. Granted, these children will have to go through rigorous education and training on the matter of such interpretation, but I think it naive to think that certain presuppositions and biases won’t slowly creep their way in.

    There tends to be, in such situations, a great deal of noise about a violation of the First Amendment and people crying “Separation of Church and State!” very loudly and then, later, quietly and/or privately conceding that the accusations were false.

    It seems somewhat similar to the what happens when a major news publication posts a front page article making some claim against a person or group and then, weeks later on page 17, they post a tiny, obscure retraction.

    Ok, I can see that I’m going into a major digression, here. Suffice to say, the establishment of a religion is quite distinct from things such as private citizens gathering to pray in front of a public school, a student voicing their faith while addressing the student body, a faith-based recording artist performing at a military base, a student desiring to sing a faith-based song during a school talent show or a small group of people gathering to pray on the steps of the United States Supreme Court (yes, this actually happened…a group doing just that was told by a police officer that they were not allowed to do that).

    That’s the main point I was trying to make with this.

    Thanks for your feedback and for giving some good information on how our government works in this area.

    Grace, love and peace.

  2. You correctly note that, by its terms, the First Amendment constrains only “Congress.” By a literal reading, do you suppose this means the President could, by proclamation, establish a national religion? Or could the Executive declare the views of a particular sect of Christianity to be true, but stop short of officially declaring that sect to be our national religion? Or could the Executive direct all federal agencies to use stationery bearing statements touting the virtues of Scientology? Mere semantics, as your post seems to suppose, rarely supplies real life answers to such issues.

    First, Congress itself cannot make any law whatsoever without the approval of the President, except in the instance of overriding a President’s veto, so to read the language as simplistically and literally as you suggest would actually do violence to the intent of the Amendment. As laws in the ordinary course are “made” by actions by both Congress and the Executive, the establishment clause is reasonably understood to constrain both branches of government. By the literal reading you suggest, it would, I suppose, only stop Congress from overriding a veto to make a law establishing a religion–a manifestly silly result.

    Second, as the Constitution designs the Executive to carry out laws that have been passed by Congress and does not give the Executive any independent power to establish religion, the establishment clause is reasonably understood to constrain the Executive in its carrying out of laws that Congress passed. That is the way James Madison understood the clause; in his Detached Memoranda, he explained that “[r]eligious proclamations by the Executive recommending thanksgivings and fasts” are not consistent with it. If the clause were interpreted to leave the Executive free, by proclamation or some such, to establish a religion, what really would be the point of the clause? No, such an interpretation would enable the Executive to eviscerate the purpose of the clause.

    With respect to application of the establishment clause’s constraints to states and their political subdivisions, courts have interpreted the 14th Amendment’s guarantee of privileges and immunities of citizenship, due process, and equal protection of the laws to effectively extend the First Amendment’s guarantees vis a vis the federal government to the states and their subdivisions–hence the law does reach the city councils and public school teachers. (While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments, e.g., the 14th, could extend the First Amendment’s constraints to state and local governments.)

    When discussing separation of church and state, it is important to distinguish between “individual” and “government” speech about religion. The First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical. The school mentioned in your post stumbled at first, but in the end seemed to get the distinction.

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