Note to readers: as far as I know, Trump has committed no fresh outrage this morning. I assume he is out on the golf course, cheating as usual. In any event, nothing in the post relates to Trump.
In is, instead, prompted by the fact that, at 6:22 last evening, the Spirit moved George Will to post The Supreme Court has a chance to clear up decades of confusion.
In response, the Spirit has moved me this morning to share just a few thoughts on the topic of freedom of religion and the First Amendment.
What the First Amendment Says
In law school, they teach you that, if your job is to construe a written provision—for example, a part of the Constitution, or a statute, or a contract—the first thing you do is look at the actual words employed in the document. In fact, the professor will yell at you if you forget to do that. As well he should. So, with that thought in mind, let’s refresh ourselves on the words of the First Amendment. It says,
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 and the Free Expression Clause
As the language implies, what we call constitutional freedom of religion has two rules. Rule One: “Congress shall make no law respecting an establishment of religion.” Rule One is typically called the Establishment Clause. And then there is Rule Two: “Congress shall make no law … prohibiting the free exercise thereof [i.e., the “free exercise” of “religion”].” You will not be shocked to learn that Rule Two is termed the Free Exercise Clause.
Will’s piece of yesterday evening deals with a forthcoming Supreme Court case on the Establishment Clause. (If interested in the details, please read it for yourself.) Will points out (correctly) that the jurisprudence of the Establishment Clause is in a godawful mess, urges the Supreme Court to clear up the mess, but fails to articulate a guiding principle that would accomplish that purpose.
Establishment Clause Jurisprudence is Bad, but Free Expression Clause Jurisprudence is Worse
So, here’s something to think about on a lazy Saturday afternoon.
Pretty much everyone agrees that the Free Expression clause prohibits government from arbitrarily targeting a particular set, and forbidding or restricting religious practices for no good reason other than dislike of that sect. So far, so good. (And that sort of thing does happen from time to time, and the courts have been pretty good about knocking it down.)
But what if Congress, or the state legislature, or the city council enacts a law that isn’t targeted at a particular sect, and that is aimed to solve a general problem or achieve some objective to promote the public good, but the law happens to violate the religious beliefs of some in the community? Here is where things start to go off the rails.
As commonly understood—I didn’t say rightly understood, I said commonly understood—the Free Expression Clause divides all of us into two categories: those who got religion and those who don’t got religion.
If you don’t got religion, then I have bad news for you: you have to obey all the laws.
But if you do got religion, then I have good news: within some limits, you get to pick and choose which laws you need to obey, based on the tenets of your religion.
I would suggest that the first question raised by this dichotomy is whether is makes any sense at all.
But put that aside. Accept on faith the righteousness of the legal distinction between the religious and the irreligious. Here are just a few questions about how to apply the distinction:
What is “religion”—as distinguished from, say, mere philosophy, or mere ethics?
How does an individual prove that she or he has got religion? (Is a court required to accept a mere assertion, or is it permitted to inquire into the sincerity of the belief?)
Then there is this. It’s not controversial that religious claims may sometimes be outweighed by other considerations. For example, a person sincerely adhering to a belief in human sacrifice could not use the Free Exercise clause to defend against murder.
So there is some kind of balancing test involved. But how is a court supposed to weigh and balance in any particular case?
Just a few questions for a lazy Saturday afternoon.
And please do think about them. And when you reach some good conclusions, find a way to let the Supreme Court know. Because the Court hasn’t got a clue.