Why Should the Constitution Protect Freedom of Religion?
This bleg just in from a friend finishing up her last year at law school:
I'm taking a class on Religion & the Constitution this semester and one of the ideas we've discussed is whether or not religion should be considered "special" enough to warrant First Amendment Protection (note: this doesn't mean special enough to warrant a lot of protection, just that it gets singled out for special treatment at all).
To answer the question, we've debated the definition of religion and, to make a long story short- 1. There's not a good one used by the courts; 2. A popular method for defining religion on a case-by-case basis analogizes to historically recognized religion--i.e. looking at factors such as ultimate concern, deeply held, external signs, organized group, etc; 3. It's at least theoretically possible to include deeply-held moral or ethical views that aren't necessarily "religious" in the definition.
I'd appreciate any thoughts on why religion (however it may be defined) might warrant special protection--specifically thoughts on how it might be different from something that is not religious. The key is to distinguish it from things like communism, law & economics, secular humanism, back-nature cults, etc while also incorporating both western and eastern religions.
The professor seems really skeptical that there is any reason that religion should be singled out (as opposed to any of these other things), but I find myself instinctively resisting his skepticism. It just seems that most religious people would argue that there is just something "different" about religious belief. Unfortunately, I'll need to articulate a theory to be able to defend pretty much any view that stems from an assumption that religion does require special attention. Alternatively, if you could persuade me that it shouldn't be singled out for constitutional protection, I'd probably be even happier as it would make my exam-taking a lot easier.
- Comment (70)
- · Quote
- · UnfollowFollow (2)
Comments :
Dec '10
Re: Why Should the Constitution Protect Freedom of Religion?
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"
It seems self-evident that it makes sense for the Constitution to prohibit the establishment of a State religion. Without the Constitutional impediment, one would expect one sect or another to vie for selection as the official Church of the United States. One of America's founding principles is that the conscience of the individual should be free from the compulsion of the State in matters of religion.
As for free exercise, it makes little sense to allow citizens to freely hold beliefs if they are going to be prohibited from honoring those beliefs with observance. At the same time, just as with freedom of speech, the State has certain overriding interests that can justify some restrictions on free exercise. Various time-honored religions incorporated rituals of human sacrifice, but our society has decided that the permanent harm to the sacrificial victim -- even if he or she consents -- is beyond the pale of acceptable religious practice. You can't yell "fire!" in a crowded theater and you can't throw a virgin into a volcano.
Jun '10
Re: Why Should the Constitution Protect Freedom of Religion?
The Constitution is our legal foundation, and though it's not mentioned in the Constitution itself, religious belief is the de facto foundation of our Constitution. Our Founders wouldn't have gotten there from any other place. Without God, there is only the power that comes from brute force. Would reason alone suffice? Whose reason? Your reason...my reason? My reason might decide to send you to a firing squad if you get in my way. After all, I'd be guided by morality--my morality.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
Edited on Dec 9, 2010 at 3:53pmJul '10
Re: Why Should the Constitution Protect Freedom of Religion?
This is what happens when people don't know anything about history.
I don't want to over-burden your young friend, but I suggest she Google the following:
The 30-Years War
The St. Bartholomew Massacre
The English Civil War
The Spanish Inquisition
May '10
Re: Why Should the Constitution Protect Freedom of Religion?
The reason religion warranted special protection at the time the Constitution was signed was because freedom to worship was one of the core principles behind the American Revolution
It was because people wanted the freedom to disagree or disassociate themselves from the Church of England that people left England and settled this country. The last thing they wanted after the Revolution was to fall back into a situation where there was a state-sponsored religion that ran the government and could coerce obedience, as the government in England did.
So the First Amendment protection isn't necessarily a result of a battle between religious and secular as much as it was to prevent a single Church of the United States. The framers didn't want the government to be able to punish the people based on religious beliefs. The two religion clauses, the Establishment and Free Exercise clauses, are each a manifestation of the framers beliefs to prevent a single state sponsored religion.
Jun '10
Re: Why Should the Constitution Protect Freedom of Religion?
Kenneth: This is what happens when people don't know anything about history.
I don't want to over-burden your young friend, but I suggest she Google the following:
The 30-Years War
The St. Bartholomew Massacre
The English Civil War
The Spanish Inquisition · Dec 9 at 3:50pm
Yes, but I'd contend that any God-free alternative history would be much worse. You do recall 20th-Century Communism...no? Imagine if Communism got its start 1000 years earlier. They could've killed billions by now.
Sep '10
Re: Why Should the Constitution Protect Freedom of Religion?
The Spanish Inquisition
Speaking of not knowing anything about history: The Myth of the Spanish Inquisition
And from NRO The Real Inquisition by Thomas F Madden resident of St Louis, Missouri, Andrea Ryan's home town. I'm sure the good Doctor Madden would one day be happy to appear here on Ricochet to field questions.
I'm glad I stopped a Full Kenneth in mid drop.
Sep '10
Re: Why Should the Constitution Protect Freedom of Religion?
As to religion, the founders knew full well the consequences of Erastianism and greatly feared the establishment of a national church that was an arm of the State.
Aug '10
Re: Why Should the Constitution Protect Freedom of Religion?
I think that the 30 Years War and the English Civil War demonstrate abundantly why our Founders believed that Freedom of Religion, and freedom from State religions, was a vital part of a just polity. Of course, in the Founder's understanding Freedom of Religion didn't mean a ban of religion in the public sector or any of the other shenanigans that go on today.
I am eternally surprised how many people fail to note that the 30 Years War and English Civil war would have been as much on the minds of our Founders as the American Civil War and Revolutionary War are in ours.
Madison makes a clear articulation of the importance of defending Religious Liberty in his piece on Property. Needless to say, a right in one's opinions as "property" (including religion) is the root of civil libertarianism.
Oct '10
Re: Why Should the Constitution Protect Freedom of Religion?
Religion can be regarded as the basis of our very being. At the core of every person there is one of two beliefs regarding the origin and purpose of life. Either, an intelligent being, usually called God or a variant of the term, or chaos, generally regarded as big-bang / Darwinism will be that beginning. Are there any options outside those two? From that core belief flows a world view that encompasses all decision making on down the line. Our philosophical life, our political views, our very humanity flows from this one point of origin.
The Founders, who articulated the First Amendment protection of religion, understood that the freedom to be faithful to ones core was found in his religion, and as such, to treat it as simply one of his many individual expressions, would be to remove his very core. The practice of ones religion is fundamental to who he is, and requires a sacred respect not given to any other aspect of his person.
Aug '10
Re: Why Should the Constitution Protect Freedom of Religion?
A brief quote from the Madison piece on Property:
"He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.
He has a property very dear to him in the safety and liberty of his person.
He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights."
Madison believed religious liberty had a "peculiar" value, by which he means distinct and completely one's own.
May '10
Re: Why Should the Constitution Protect Freedom of Religion?
It seems the religious very often require freedom from other religious people. The words "separation of church and state" are found not in the Constitution but in a letter sent by Thomas Jefferson to the Danbury Baptist Association in 1802 which was a response to a letter from the Danbury baptists who expressed to Jefferson their worry about threats from yet another religious group, the Congregationalists. Religious people are very often the greatest enemy of other religious people, so the right to be religious in the absence of coercion is something that is paramount.
However, I would argue that freedom from religion and religious coercion is at least as important. I don't want anyone imposing religiously-inspired laws upon me that violate my right to liberty or private property, nor do I want anyone forcing me to convert to Christianity or Islam or Judaism.
Re: Why Should the Constitution Protect Freedom of Religion?
Nathaniel Wright:
Madison makes a clear articulation of the importance of defending Religious Liberty in his piece on Property. Needless to say, a right in one's opinions as "property" (including religion) is the root of civil libertarianism. · Dec 9 at 4:08pm
This is a novel idea to me. I'd never before heard an argument that espoused one's opinions and beliefs as "property" or "property of peculiar value." I wonder what specifically is meant by "peculiar value."
I can hold an opinion that my government is destructive or that communism is an order to which we should strive, and those opinions by definition would count as my "property." But what distinguishes religion?
Aug '10
Re: Why Should the Constitution Protect Freedom of Religion?
Diane Ellis, Ed.: This bleg just in from a friend finishing up her last year at law school:
I'm a bit confused... Does she mean extra First Amendment protection -- protection beyond what the First Amendment says?
What I see in the First Amendment is that there should be no national religion established by law, and that people should be free to exercise their religion, just as they would be free to do anything else -- that is, that religion cannot be any more constrained than any other activity. (For example, since you are not free to cannibalize your sister for non-religious reasons, you couldn't do it for religious reasons, either. But whatever you can do for non-religious reasons, you can do also for religious reasons without penalty.)
Am I missing something?
Re: Why Should the Constitution Protect Freedom of Religion?
Midget Faded Rattlesnake
I'm a bit confused... Does she mean extra First Amendment protection -- protection beyond what the First Amendment says?
No. She means to ask why it's mentioned in the First Amendment at all. I suppose the professor sees speech, press, and assembly as obvious items that need protection if society is to remain free, but deems religion as not belonging with these other items, particularly because of the difficulty inherent in defining religion.
Aug '10
Re: Why Should the Constitution Protect Freedom of Religion?
First, the Federalist wasn't keen on the inclusion of a Bill of Rights for fear that it would create a sentiment of "enumerated rights" which runs counter to the concept of Natural Right.
Second, Freedom of Religion may not be more "special" than any other particular Right of Property, but it is a right of property that is always individual in nature. I can share ownership of my house with my wife, I cannot share "ownership" of my religious sentiments with any other being. In that way they are peculiar, in that they are distinctly mine and no one else's. If you can remove from me my freedom to express religion, one of my completely personal properties, what other properties can I claim right to against government tyranny?
If the state does not secure my property on something as intimate as religion, how can it truly be said to secure any other rights?
The same goes for the protection of intellectual property or any other distinctly personal, rather than shared property. If a state doesn't strive to protect "ephemeral" properties, then it isn't truly protecting rights.
May '10
Re: Why Should the Constitution Protect Freedom of Religion?
Reason is not subjective - its an objective method. Just as there is no "my logic" or "your logic" or "my math" or "your math," there are no subjective kinds of reason. If what you say is true then you would be compelled to reject reason, for you suggest (correct me if I'm wrong) that reason is unreliable. Are you as suspicious of reason when it comes to mathematics or physics?
Jul '10
Re: Why Should the Constitution Protect Freedom of Religion?
Pseudodionysius: The Spanish Inquisition
Speaking of not knowing anything about history: The Myth of the Spanish Inquisition
It wasn't a myth to the 5,000 people who were tortured and executed.
Yeah, a small number, I know. But without the protections of the 1st Amendment, it could happen to anyone.
Aug '10
Re: Why Should the Constitution Protect Freedom of Religion?
Diane Ellis, Ed.
Midget Faded Rattlesnake
I'm a bit confused... Does she mean extra First Amendment protection -- protection beyond what the First Amendment says?
No. She means to ask why it's mentioned in the First Amendment at all. I suppose the professor sees speech, press, and assembly as obvious items that need protection if society is to remain free, but deems religion as not belonging with these other items, particularly because of the difficulty inherent in defining religion.
Perhaps the Founders included religion explicitly because they knew governments historically have a habit of favoring some religions over others, and not extending to religion the same protection that is given to other personal and intellectual property. Therefore they wished to guard against this by naming religion explicitly.
Press, speech, assembly, and religion are all things oppressive governments typically like to meddle with, though they are not all that can be meddled with.
Is the question perhaps why explicitly protecting speech, assembly, and press alone was not considered enough to also safeguard religion?
May '10
Re: Why Should the Constitution Protect Freedom of Religion?
Diane Ellis, Ed.
Midget Faded Rattlesnake
I'm a bit confused... Does she mean extra First Amendment protection -- protection beyond what the First Amendment says?
No. She means to ask why it's mentioned in the First Amendment at all. I suppose the professor sees speech, press, and assembly as obvious items that need protection if society is to remain free, but deems religion as not belonging with these other items, particularly because of the difficulty inherent in defining religion. · Dec 9 at 4:32pm
My Faith, being 2000-plus years old, seems a tad more permanent to me than the USA. If I have to tolerate weird rights contrived churches to sustain it, well....
Aug '10
Re: Why Should the Constitution Protect Freedom of Religion?
One cannot truly believe in freedom of speech if one thinks that religious speech shouldn't be protected.
It's not "special" per se. It's merely a form of speech. For someone to say that religious speech doesn't deserve "special" protection really means that they do not truly believe in freedom of speech at all.